UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


MODEM   JURY  TRIALS 


AND 


ADVOCATES: 


CONTAINING 


CONDENSED   CASES,    WITH    SKETCHES  AND 
SPEECHES  OF  AMERICAN  ADVOCATES; 


NOTKS  AND  RULES  OF  PRACTICE. 


FOURTH  REVISED  EDITION,  ENLARGED. 


BY  JUDGE  JOSEPH  W.  DONOVAN. 

'K 


THE  BANKS  LAW  PUBLISHING  CO. 
NEW     YORK 

1908 


COPTBIGHT.  1908,  BY 
THE  BANKS  LAW  PUBLISHING  COMPANY 


PREFACE. 


V«y  many  jury  trials  of  the  past  quarter  century  hare  contained  subjects 
of  exciting  and  romantic  interest.  Some  have  been  tried  by  brilliant  adv<>- 
cates,  whose  uainus  alone  foretell  sayings  of  original  beauty;  men  who 
possessed  the  art  aud  genius  to  please  and  persuade  a  court  and  jury,  in  a  rare 
degree.  A  few  cases  are  already  reported,  but  many  have  been  lost  by  hick 
of  a  record  in  an  enduring  form.  Wise  men  have  given  long  lives  to  the 
study  and  art  of  court  practice.  Their  experience  and  genius,  learning  and 
acumen  shine  in  their  victories  and  sparkle  in  their  speeches  in  gems  of 
u-isdom  worth  their  weight  in  gold. 

Law  libraries  are  full  of  reports  and  digests,  that  life  is  not  long  enough 
to  read.  The  details  of  jury  trials  in  a  single  year  would  be  more  than  any 
man  could  master.  But  standing  out  from  the  rest,  with  stirring  thoughts  and 
thrilling  interest,  are  celebrated  cases  of  the  past  twenty  years,  and  eminent 
orators,  who  turned  the  verdict  of  juries,  by  their  skill  and  eloquence,  that 
every  advocate  should  know  and  remember.  To  read  them  is  to  see  the  art  by 
which  great  suits  are  won,  while  no  class  of  literature  is  crowded  so  full  ol 
incident,  human  nature,  and  the  wisdom  of  everyday  life. 

Some  of  the  most  important,  with  as  large  a  variety  as  possible,  of  these 
cases  have  been  selected,  condensed,  and  here  reported,  with  the  details  and 
evidence  largely  omitted.  The  language  and  manner  of  counsel,  wit,  stories 
and  sketches,  are  given  to  show  their  weapons  of  warfare.  Examples  of  how 
juries  are  selected,  witnesses  examined,  trials  prepared,  evidence  secured,  with 
rules  of  practice  and  rare  closing  periods,  taken  from  stenographers'  notes, 
briefs  of  counsel,  and  careful  observation,  in  a  dozen  different  States.  Much 
could  be  added,  and  many  eminent  names  would  be  mentioned,  but  they  hap- 
pen not  to  be  personally  connected  with  the  cases  here  cited,  and  their  words 
have  not  been  saved,  in  form  to  use,  although  kindly  disposed,  they  wer« 
unable  to  furnish  the  speech  or  sketch  that  would  be  of  general  interest. 

This  report  is  confined  to  modern  jury  cases,  many  of  which  are  greatly 
abbreviated,  some  are  reduced  from  nine  hundred  to  forty-five  pages,  while 
their  salient  points  are  aimed  to  be  preserved,  and  the  story  kept  complete. 
Many  of  these  cases  alone  would  fill  a  large  volume;  but  the  eloquence,  inci- 
dents, genius  and  acumen  of  counsel,  are  shown  in  cross  examination,  debates 
on  evidence,  and  arguments  to  the  jury,  without  verbiage.  The  power, 
pathos  and  ingenuity  of  the  defense,  or  logic  and  stern  facts  of  the  prosecu 
tion,  have  been  arranged  in  as  terse  and  readable  a  form  as  I  could  give  them, 
generally  giving  from  thirteen  to  thirty  pages  to  a  case. 


»n 


CASES   REPORTED, 

WITH    COUNSEL. 


MATT.  WARD  CASE 10 

Counsel — Messrs.     CARPENTER,  TOM  MARSHALL,    Gov.   CRIT- 

TENDEN,    GOV.  HELM,  Ex-PuEBIDE.NT  HAYES,  GEN.  WOLFE. 

MARY  HARRIS  CASE 86 

Counsel — Messrs.   D.    W.    VOORHEEB,   BRADLEY,   CARRINGTOR 
aud  HUGHES. 

DEFENSE  OP  COOK 107 

Speech  of  D.  W.  VOORHEES. 

CONSPIRACY   CASE        .  110 

Counsel— Messrs.   W.   H.   SEWARD,  J.  A.  VAN  DYKE,  SENATOB 
HOWARD,  JOHN  VAN  ARMAN. 

SICKLES-KEY  CASE 181 

Counsel — Messrs.  GRAHAM  and  STANTON.     Defense  of  home. 

TRIAL  BY  JURY 166 

HON.  CHAS.  S.  MAY.     (University  address.) 

PIERCE  WILL  CASE 190 

Counsel — HON.  CHAS.  S.  MAY. 

FARMAN-WARD  CASE 206 

Counsel — Messrs.  LOTHROP,  MAYNARD  and  HOWABD. 

TWENTY-ONE  RULES  OF  JURY  PRACTICE       ....  209 

IDEAL  CASES                223 

WINNING  CASES 224 

SELECTING  A   JURY        .                                 227 

CROSS-EXAMINATION 228 

LOCK  OF  LAW 230 

REACHING  A  JURY            232 

THE  OTHER  SIDE 284 

METHOD  t85 


viii  CASES  REPORTED. 

LAW  OFFICE  AND  TRIAL 288 

MAY-STEPHENS  CASE 243 

Oouruel — Messrs.  Me  REYNOLDS,  ASHLEY  POND,  8.  M.  CUTCHEON, 

\S  M.   A.  MOORB 

POSTER-HATFIELD  CASE 24« 

GEN.  THOS.  M.  BROWN. 

TRIAL  OF  UNDERWOOD 26U 

Counsel— Messrs.  CHAMBERS,  CHIPMAN  and  CHESTER. 

VANDERPOOL-FIELD  CASE         .         .         .         (1)277;   (2)282;   (3)  2W 
Counsel— Messrs.  LOTHROP,  VAN  ABM,-  N,  HUGHES,  CUTCHKON, 
CHURCH  and  CHEEVER. 

McFARLAND-RICHARDSON  CASE .814 

Counsel — Messrs.  GRAHAM  and  BBADY. 

NEWLAND-EVANS  CASE 854 

Counsel — MAJ.  J.  W.  GOBDON. 

WARD  WILL  CASE 894 

Counsel — Messrs.  J.  LOOAN  CHIPMAN,  WEBT  DEXTER,  DABWIN 
HUGHES,  KOMEYN  and  MEDDAUGH. 

BR1NKLEY  CASE 411 

Counsel — HON.  WM.  A.  BEACH. 

BEECHER-TILTON  CASE 433 

In  brief,  with  EVARTB  and  BEACH  sketched. 

BABCOCK  CONSPIRACY  CASE 420 

Counsel — Messrs.  STOURS,  PORTER,  DWYEB  and  BROADHEAD. 

RAYMOND-HILL  CASE 452 

Miss  LOCKWOOD. 

ELEVATED  RAILROAD  CASE 456 

GEN.  BUTLER  as  an  advocate  and  orator. 

CALLAHAN-TORMIE  CASE 465 

Counsel — HON.  JOHN  MCSWEENEY,  and  other*. 

PORT  HURON  RAILROAD  CASE 471 

HON.  STANLEY  MATTHEWS. 

BIBLE  IN  THE  SCHOOLS .,473 

HON.  STANLEY  MATTHEW*. 

STANDARD  OIL  CO ,        .      482 

HON.  STANLEY  MATTHEWS. 

PAGE  IMPEACHMENT  CASE 494 

Ex-Gov.  DAVIS,  of  Minnesota, 

BURCII  DIVORCE  CASE 523 

Counsel — MILLER,  BROWNING,  VAX  ARMAN,  etc. 


INDEX  TO  SELECT    PARAGRAPHS. 


CHIEF  JUSTICE  RYAN,  on  law  practice  and  college  course 

VILUS,  HUDD  and  JENKINS. 
SENATOR  MATT.  CARPENTER       . 

HAS  ELTON. 

Personnel  of  a  brilliant  advocate. 
STOKES-FISK  TRAGEDY 

Counsel — LYMAN  TREMAIN. 
BUFORD-ELLIOTT  CASE 

Counsel — GEN.  BRECKENRIDGE  and  JUDGE  CURTIS. 
CLOSING  PERIODS 


PAGE 

550 


567 

571 
606 
666 


INDEX  TO  SELECT  PARAGRAPHS. 


CRITTENDEN    . 
VOORHEES      . 
SEWARD      . 
VAN  DYKE      . 
STANTON    . 
GRAHAM . 
HOWARD     . 
McREYNOLDS 
GORDON     . 
GORDON 
WESTERN   . 
LEGAL  DUEL 
BEACH 

McSWEENEY  . 
BROWNING 
MATTHEWS    . 
DAVIS  . 
BROWNING     . 
RYAN   . 

BRECKENRIDGE   . 
CURTIS 
ARNOLD  and  others. 


Allegory       .... 
Growth  of  Affection 
Flight  of  Time     . 
Forecast  of  Future    . 
Art  and  Sagacity 
Friendship 
Wreaths  of  Laurels 
Picture  of  an  Accident 
Flowers  on  the  Grave 
Tribute  to  Virtue 
Picture  of  a  Battle 
Dexter  and  Chipman 
Sacredness  of  Marriage 
Duty  of  Advocates    . 
The  Mother  and  her  Children 
Apostrophe  to  the  Bible    . 
Tribute  to  Shakespeare 
Life's  Last  Hour 
Lawyers  as  Leaders 
Welcome  to  Sir  Knights    . 
Early  Affections   . 
In  Closing  Periods    . 


PAGE 
33 
83 
114 
123 
132 
134 
209 
245 
362 
373 
357 
403 
411 
468 
536 
478 
516 
538 
555 
610 
647 
680 


BARTLETT 
BEACH 
BUTLER    . 
CHEEVER      . 
CHIPMAN 
CRITTENDEN 
CURTIS     . 
DARROW       . 
GORDON  . 
GRAHAM 
HOWARD 
HUGHES 


PERSONNEL. 

LEWIS    .... 

PAGE 

xi 

LINCOLN 

423 

LOTHROP     . 

.    456 

MATTHEWS     . 

293 

MAY        . 

.     394 

McSWEENEY    . 

28 

MARSHALL  . 

.     630 

RUSSELL 

706 

TREMAIN      . 

.    356 

VAN  ARMAN    . 

130 

VAN  DYKE   .... 

.     130 

VOORHEES      . 

294 

INDEX  TO  ART  AND  SAGACITY. 


ART  AND  SAGACITY. 

BEACH    .                 ...  OnBeecher        ....  ^45 

BRADLEY.        .                         .  Stilting  Questions  .        .        .        .        -.  4-2  1 

BRECKENRIDGE          .         .  Malpractice        ....  684 

<  HEEYER  .....  "  Witness  Trees"   .....  305 

CHIPMAN       ....  "With  a  Witness"       ....  267 

(  K  FRO      .....  Self  Defense   ..... 

,  T1S  .....  "Chivalry"         ..... 

DARROW  .....  The  Hcywood  Case        ... 

GORDON        ....  "Separate  Jurors"      ....  357 

GRAHAM    .....  Insanity          ......  328 

I1ANCHETT  .        .        .  "In  a  Millkfti  Case" 

Value  of  a  Lawyer;"  Trial  Hints;  "The  Greek  Wheel"     .        .        .        .  jriii 

HUGHES         ....  "Tine  Table"  .....  258 

LEWIS        .....  Self-Defense          .....  714 

LINCOLN        ....  First  Murder  Case  70i 

MARSHALL'S    ....  Character      ......  21 

-Kl.l  .....  On  Damages      .....  675 

TREMAIN  .....  From  Cicero           .....  591 

VOORHEES    ....  "Bouquet"         .....  94 

WALKER    .....  "  Law  Office,  &c.,"         ....  238 

WEBSTER'S  ....  Closing      ......  425 


NOTE  TO  FOURTH  REVISED  EDITION. 

JUDGE  BARTLETT,  of  Nebraska: — "  Your  suggestions  have  brought  me 
'//'  it  success  in  handling  arguments." 

That  a  book  of  sixty  trials,  covering  a  period  of  thirty  years  and  cit- 
i.ig  cases  back  for  two  hundred  years,  tried  by  two  hundred  of  the  ablest 
advocates  in  this  or  any  country,  but  mainly  by  American  advocates — 
should  continue  to  sell  for  twenty-seven  years  is  some  proof  that  the  law- 
yers who  tried  the  cases  reported  were  able  to  master  their  facts  and  law 
as  to  enforce  attention  by  their  eloquence. 

The  marvelous  changes  in  our  country,  in  law,  literature,  banking, 
mining,  building,  shipping  and  machinery — especially  the  trolley,  the  mo- 
bile, the  fast  travel  and  vast  ness  of  commerce  and  contracts  has  multiplied 
the  cases  and  trebled  the  fees  for  the  same  services  and  placed  all  skilled 
labor  and  skillful  men  on  a  high  plane  of  income.  In  scarcely  any  place  is 
this  more  pronounced  than  in  the  trial  of  large  cases,  which  have  come  to 
my  attention  in  fourteen  years  of  Circuit  bench  service. 

I  have  failed  to  note  any  greater  eloquence  or  more  skill  in  trials, 
more  genius  in  forecaste,  more  power  of  presentation  by  the  higher  class 
of  present  day  advocates  over  Webster — Evarts — Butler — Seward — - 
Mathews — Curtis,  Ryan — Conkling  -Carpenter  and  Lincoln,  even  since 
the  enlarged  scope  of  law  schools  and  college  training.  A  lawyer  is  in  the 
man.  It  may  be  finer  finished  scholars  from  college,  but  the  real  lawyer  is 
still  one  who  has  solved  the  problems  he  presents  to  a  court  or  jury  in  his 
own  way:  in  his  own  process  of  reasoning;  in  his  own  logic,  genius  and 
preparedness,  learned  and  applied  in  the  sharp  school  of  experience. 

At  the  close  of  the  volume  and  in  sections  midway  and  throughout 
are  given  winning  points — hints  on  cross-examination — happy  turns,  trial 
eloquence  and  observations  on  plan  of  speaking  with  a  power  to  please,  a 
way  to  win,  drawn  from  examples.  And  attention  is  called  now  to  one  il- 
lustration which  may  stand  as  an  index  to  many,  and  afford  to  a  student 
an  actual  avenue  across  the  world,  by  which  one  fact  is  so  established  as  to 
become  stronger  and  stronger,  convincing  and  more  convincing  every  time 
it  is  repeated.  It  is  found  under  the  heading,  The  Greek  Wheel,  elsewhere 
inserted,  the  core  of  which  is: 

"  I  am  reminded,  O,  King,  that  there  is  a  wheel,  on  which  the  affairs 
of  men  revolve,  and  its  mechanism  prevents  any  man  from  being  always 
fortunate." 

One  will  see  at  a  glance  how  the  wheel  applies,  and  has  always  ap- 
plied, to  lawyers. 

The  last  quarter  century  has  been  an  evolution  in  law  practice.  It 
has  about  equaled  the  progress  of  machine  work  over  hand  labor.  The 
shorthand  dictation  is  of  immense  value  to  busy  practitioners.  The  rapid 
cross-examination  to  unearth  predatory  wealth,  and  the  poorly  hidden 


xu  MODERN  JURY  TRIALS. 

riches,  unlawfully  made  in  the  giant  insurance  venture.  Trusts  and 
watered  stock  dealings;  the  Dill  Settlement  of  the  Frick  case,  a  pioneer 
million  dollar  fee — with  all  the  partnerships,  shareholders  in  corporate 
stock,  have  far  outstripped  Congressional  or  Senatorial  positions.  In  fact, 
ours  is  the  day  and  year  of  fame  and  fortunes  earned  in  litigation,  and  well 
may  the  wise  and  eloquent  lawyers  lead  in  the  Arts  of  Civil  Government. 

The  value  of  a  lawyer  to-day  is  greater  than  ever  before,  depending 
upon  his  keenness,  alertness,  preparedness  to  do  the  kind  of  service  de- 
manded of  men  who  handle  vast  interests;  leading  up  high  on  the  ladder 
of  fame,  as  witness,  Choate  to  St.  James,  Root  to  the  Cabinet,  Folk  and 
Hughes  to  the  leadership  of  great  state  issues,  or  Spooner  to  resign  a  Sena- 
torship  for  a  higher  position — large  law  practice.  Never  in  our  history, 
were  great  lawyers  in  greater  demand. 

J.  W.  D. 

DETROIT,  March,  1908. 


THE  VALUE  OF  A  LAWYER. 

X 

The  value  of  a  lawyer  depends  upon  himself — his  alertness,  his  pre- 
paredness of  mind,  and  body  for  the  task  that  lies  before  him. 

It  matters  not  where  he  gains  his  preparedness,  whether  it  be  at 
Harvard,  Yale  or  Ann  Arbor,  in  the  Court  Room,  in  his  study,  or  by  ex- 
perience. Such  keenness,  forecast  and  preparedness  will  surely  be  needed 
to  raise  him  above  his  fellows. 

It  takes  great  intellectual  gifts,  said  May,  to  make  a  great  lawyer. 
No  man  rises  to  a  height  at  the  Bar,  without  a  struggle,  and  without  in- 
tellectual power.  Unlike  the  minister,  with  his  ex  parte  case  behind  the 
pulpit.  Unlike  the  doctor  with  his  prescription  in  the  dark,  the  lawyer's 
work  is  done  in  the  broad  light  of  open  day,  confronted  at  every  step  by 
able  opposition,  and  argument,  with  the  entire  community  looking  on. 
To  meet  such  a  test  requires  the  keenest  and  ripest  powers.  We  need  our 
advocates,  and  our  lawyers,  we  need  them  for  the  glory  of  arts  and  of 
letters,  but  more  than  all,  for  the  perpetuity  of  our  institutions. 

It  was  the  plain  country  lawyer  of  Saginaw,  with  his  mastery  of  law, 
who  raised  the  point  in  the  Million  Dollar  Depot  case,  to  the  effect  that 
one  who  draws  a  contract,  and  leaves  it  uncertain,  when  he  could  have 
made  it  certain,  is  ever  after  estopped  from  trying  to  alter  its  terms  in  his 
own  favor,  and  the  country  lawyer,  Benton  Hanchett,  won  the  Million 
Dollar  case  on  that  single  issue,  as  the  case  was  promptly  affirmed  on  that 
issue. 

O,  to  be  just  a  country  lawyer  like  Hanchett,  and  win  such  a  brilliant 
victory. 

We  need  not  go  so  far  from  home  to  find  the  value  of  a  lawyer  with 
an  opportunity,  for  we  know  of  a  nearby  lawyer,  at  our  own  banquet 
table,  right  here  in  Hastings,  and  know  that  he  won  in  a  great  railway  tax 
case,  with  a  matter  of  six  million  dollars  to  the  credit  of  the  State  of 
Michigan,  and  to  the  everlasting  credit  of  our  "Charlie  Blair,"  of  the  Su- 
preme Court  of  Michigan. 

And  I  add  again  for  emphasis,  O,  for  the  value  of  a  lawyer,  just  as 
good  as  Justice  Blair! 

But  another,  and  greater  than  all  lawyers  ever  yet  produced  in  our 
country — and  I  say  it  deliberately,  for  at  the  firing  on  Fort  Sumter, 
April  12,  1861,  the  greatest  lawyers  of  our  country  were  at  sixes  and  sevens 
on  the  power  to  maintain  the  Union.  When  a  plain  Western  lawyer, 

xiii 


xiv  :,;M>i-;ux  ji'itv  vi.i 

with  wisdom,  forecast,  and  eloquence,  said: — the  power  of  perpetuity 
was  implied  in  our  form  of  government,  and  even  on  a  contract  basis  one 
partv  could  not  annul  a  contract  without  the  consent  of  both  .parties. 

And  almost  in  the  same  breath.  England  and  France  were  about 
to  recogni/e  the  ( 'ontVderacy.  and  Seward  jienned  a  savage  letter  to  Eng- 
l;in<l.  which  breathed  of  war  in  every  sentence — when  the  plain  lawyer, 
Lincoln,  took  the  letter  to  the  quiet  of  his  private  room.  When  he  went 
into  that  room  he  carried  a  challenge  to  war.  and  when  he  came  out, 
he  had  a  dignified  letter  that  told  England  how  she  had  taught  us  the  doc- 
trine of  neutrality  between  friendly  nations,  and  we  would  follow  in  her 
footsteps. 

The  world  was  astonished  and  bewildered  at  the  clearness  and 
soundness  of  the  country  lawyer's  position,  and  war  with  England  was 
averted.  O,  the  value  of  a  lawyer  like  that,  at  a  time  like  that,  when  the 
life  of  a  nation,  with  its  millions  of  people,  for  his  clients,  and  the  millions 
that  they  owned,  in  peril  by  the  issue! 

The  value  of  a  lawyer,  if  in  what  he  does,  not  for  himself,  but  his 
country.  It  was  Demosthenes,  the  prince  of  orators,  who  said,  in  thunder 
tones  at  Athens,  '"Man  it  no4  born  to  hif  parents  only,  but  to  his  country." 

And  I  place  Lincoln,  the  lawyer,  as  the  greatest  genius  produced  by 
ar  in  this  or  any  other  country  for  a  hundred  years.  Lincoln,  the 
!  :wyer,  solved  more  problems  of  the  government  than  any  American 
.statesman. 

It  was  a  country  lawyer.  M.  R.  Wake,  in  practice  in  Maumee,  Ohio, 
before  the  war — starting  in  a  plain  way,  at  first,  trying  cases  in  black- 
smith shops,  holding  on  with  his  nerve,  courage  and  integrity,  until  he 
became  master  of  himself. 

^aite  was  an  "Ironside"  in  law,  and  was  appointed  by  General 
Grant  to  prosecute  the  Geneva  Award  Claims,  and  made  such  a  masterly 
argument  in  the  case,  that  he  won  the  award  for  hi.-,  country  of  $15,500,000 
and  a  seat  on  the  United  States  Bench  (the  highest  station  in  the  world) 
for  himself.  O,  the  value  of  a  lawyer,  in  a  time  like  that;  with  an  op- 
portunity like  that:  and  to  win  a  case  of  fifteen  millions  like  that! 

But  I  hinted  that  something  would  he  said  of  new  opportunities. 
In  an  Eastern  Art  Gallery,  opportunity  is  pictured  as  a  young  man,  about 
!••  run  a  race.  Around  his  head,  half  concealing  his  eyes,  is  a  turban;  on 
« iHit-r  arm.  a  wing,  on  each  foot  a  web.  Asked  why  the  hood  was  over 
es,  the  guide  said:  opportunity  is  not  seen  face  to  face,  clearly,  we 
only  rrrt  a  glance  at  it  and  it  is  gone.  Why  are  the  wings  upon  the  arms  ? 
Opportunitv  goes  on  wings.  Why  are  the  webs  upon  the  feet  ?  Oppor- 
tunity is  found  upon  the  water  as  well  as  upon  the  land. 


THE  VALUE  OF  A  LAWYER.  xv 

So,  with  young  lawyers,  you  must  watch  your  opportunity.  It  comes 
and  goes  quickly. 

Suits  have  sprung  up  from  fast  machinery,  and  trolley  accidents. 
Suits  over  corporations,  business  growing  out  of  stock  companies.  Suits 
over  wages,  liens  and  endless  work  over  new  business  contracts.  In  very 
many  companies,  young  men  can  gain  an  interest  and  act  as  counsel. 

It  will  be  a  hard  battle — the  battle  of  preparedness,  and  "You  are 
beaten  to  earth."  Well,  well,  what  of  that?  Come  up  with  a  smiling 
face. 

It  isn't  against  you  to  fall  down  flat,  but  to  lie  there,  that's  disgrace. 

The  harder  you  fall,  the  higher  you  bounce.  Be  proud  of  your 
blackened  eye. 

It  isn't  the  fact  that  you  are  licked  thai  counts.  It  is,  how  did  you 
-fight,  and  -why  f  " 

The  opportunity  to  the  young  man  never  was  brighter.  The  banks 
are  full  of  money;  the  stores  are  full  of  goods ;' the  shops  are  full  of  orders; 
the  parks  full  of  flowers;  the  homes  are  full  of  happiness. 

O,  to  be  a  young  lawyer  to-day  with  fifty  years  of  time  in  a  world  like 
ours,  in  a  country  like  ours,  is  a  splendid  opportunity.  And  I  say  to  you, 
young  men,  money  making  is  not  done  by  hand  any  longer.  It  is  done 
by  machinery.  Cities,  states  and  nations  grow  rich  by  machinery.  You 
must  get  next  to  the  machines;  take  shares  in  safe  companies — and  help 
form  the  new  companies — take  stock  in  banks,  take  active  part  in  the 
world's  affairs — prepare  fully  and  wait  patiently,  but  work  while  you  wait. 

The  value  of  a  lawyer  is  in  himself— in  what  he  can  do  and  in  his 
refusal  to  surrender  when  he  knows  he  is  in  the  right. 

The  case  is  made,  the  conclusion  is  dear;  money  is  not  the  measure 
of  honor.  Fame  is  not  the  reward  of  one  case.  Honor,  fame  and  great- 
ness are  all  earned  and  only  earned  in  our  country  by  a  struggle. 

And  to  you,  young  men,  in  the  May  morning  of  your  lives,  I  hold 
up  the  character  of  that  fearless  leader,  Lincoln,  his  wisdom,  forecast, 
courage  and  eloquence;  who  dared  to  think  for  himself  and  be  independ- 
ent, and  say :  measured  by  his  one  act  of  emancipation  and  the  happiness 
it  brought  into  the  world,  his  fame  will  rank  with  the  fame  of  Washington! 


THE  THINKER  WINS. 

Within  the  period  of  the  next  half  hundred  years — guessing  the 
future  bv  the  past — the  leaders  in  our  country  will  have  risen  from  the 
factories,  shops,  electrical  and  industrial  ranks;  just  as  surely  as  machines 
are  destined  to  replace  hand  labor,  so  surely  must  thinkers  invent  and 
create  the  machines,  and  so  surely  must  men  who  think  do  the  inventing. 
The  age  of  drudge  work  and  even  heavy  lifting  is  about  over.  Machines 
will  do  the  lifting  as  easily  as  elevators  deliver  passengers  to  the  top  of 
tall  buildings;  mining  will  not  always  be  done  by  hand,  and  mortar  mixing 
will  soon  disappear,  or  be  delivered  much  nearer  a  finished  product. 

And  who  are  the  men  who  will  reach  the  higher  levels  of  advance- 
ment? The  answer  is  simple:  those  who  are  born  of  engineers,  inventors, 
thinkers,  managers  of  works — who  think  at  their  work,  after  their  work 
and  before  starting.  Why  ?  Shall  we  breed  fast  horses  from  clumsy  stock, 
or  do  we  not  rather  cross  them  with  swift,  trim,  spirited  animals  ?  So, 
the  thinking  men  of  the  future  will  be  bred  from  thinkers — and  they  are 
found  among  enterprises  that  call  for  keen  thinking. 

Xo  stones  need  be  thrown  at  young  clerks,  law  students  or  book- 
keepers, but  such  are  rarely  inventors;  their  time  and  care  and  energy 
and  ambition  is  each  centered  on  the  power  to  please  customers,  not  on 
a  new  method  of  making  buildings  of  steel  and  cement,  glass  and  con- 
crete, iron  and  terra  cotta.  Xor  are  they  thinking  of  air  brakes — safety 
signals;  strong  bridges,  or  air  hammers,  or  any  new  process  of  turning 
earth's  products  into  money. 

Not  long  since,  I  spent  a  couple  of  days  with  a  leading  glass  works 
manager  from  Pittsburg,  and  later  an  editor  of  a  foundry  paper,  and  later 
still  paid  a  visit  to  the  Lackawana  Steel  Works  at  Buffalo  and  learned 
many  startling  facts  on  our  country's  progress.  First,  from  the  Glass 
Works,  that  glass  is  now  made  by  machinery,  twenty  times  cheaper  than 
it  was  forty  years  ago;  from  the  foundry  editor  that  a  belt  of  iron  land 
one  hundred  miles  wide  and  two  hundred  miles  long  in  upper  Michigan 
and  lands  adjoining  is  proved  up,  which  contains  enough  to  supply  the 
world  with  steel  for  one  thousand  years  or  over. 

From  the  Buffalo  works  mentioned,  with  its  seven  thousand  men, 
fifteen  thousand  dollars  daily  pay  roll,  twelve  thousand  tons  of  one  prod- 
uct— tool  steel — and  eighteen  hundred  tons  of  tee  rails  with  men  earn- 
ing $12.00  per  day  down  to  $2.50  daily — men  who  think  clearly,  act  with 
xvi 


THE  THINKER  WINS.  xvii 

wisdom  and  caution,  men  who  are  thinkers  and  are  constantly  found 
using  new  methods,  new  machines,  new  promotion.  And  the  gist  of  all 
to-day  is:  a  man  trained  to  do  something  well,  willing  to  do  it,  and  sta- 
bility to  grow  up  with  a  business  until  he  earns  and  owns  a  good  share 
in  the  business. 

Courts  have  often  found  what  a  signal  aid  it  is  to  a  marine  lawyer 
to  have  had  experience  in  sailing  vessels,  in  accident  and  collisions  upon 
the  water;  of  the  aid  to  a  business  lawyer  to  have  had  special  business 
training,  especially  as  to  patents  and  machinery,  and  so  on  through  all 
the  whole  line  of  structural  steel  and  iron  works,  building  of  every  de- 
scription, mining,  farming,  of  making  things  and  doing  things,  more  than 
of  reading  from  a  few  books  what  people  did  in  older  countries  under 
vastly  different  conditions.  The  up  to  date  lawyer  who  can  present  his 
case  on  the  facts  with  precision  and  practical  clearness  is  the  winner 
every  time. 


TRIAL  HINTS. 

With  a  claim  to  observation  more  than  origin,  these  rules  seem  in 
vogue  to-day: 

(1)  Select  all  cases  with  the  closest  care — reject  those  doubtful,  or 
settle  them. 

(2)  Select  a  jury  of  middle-aged  men,  smart  enough  to  see  a  point, 
but  avoid  leaders,  or  Bell-wethers. 

(3)  The  jury  list  and  examination  on  their  Voir-Dire  will  show  a 
bias,  if  they  have  one;  once  selected,  do  not  offend  a  jury  by  flattery,  or 
provoke  them  by  petty  quarrels  with  counsel — tlie-y  tire  of  wrangling. 

(4)  See  that  you  start  well ;  a  candid  opening  makes  a  fine  impression ; 
like  the  first  sentence  in  an  address,  it  acts  as  a  preface. 

(5)  Never  lose  interest  in  your  side — you  will  be  overmatched  at  times, 
but  do  not  surrender. 

(6)  No  jury  will  believe  in  your  case  if  you  show  the  white  feather; 
rtand  like  a  rock  against  opposition. 

(7)  Sprinkle  your  case  with  candor — make  it  clear  above  all  things 
and  prove  it  to  be  so  just  as  to  compel  a  verdict. 

(8)  The  kind  of  skill  in  law  depends  upon  the  kind  of  contest.    .Car- 
negie called  Dill — in  Frick's  case — as  one  trained  in  corporate  law.'    He 
paid  a  million  fee  and  won  five  by  it.    Dr.  Agnew  was  called  to  Garfield's 
side  as  a  wise  surgeon.    My  neighbor  very  near  to  death  was  taken  to  a 
small  Minnesota  village  where  a  special  surgeon  could  operate.    Be  sure 
your  surgeon  (counsel)  knows  the  case. 

(9)  Lawyers  in  towns  and  cities  are  never  gauged  by  the  cities  where 
they  live,  but  always  by  the  skill  they  display.    "I  have  been  blind  twenty 
years,"  said  a  tall  traveler;  "My  sight  has  been  restored,  I  am  almost 
home;  an  unknown  man  of  skill  has  restored  my  sight.    I  am  almost  home, 
two  of  my  children  were  born  since  I  was  blind.    I  am  soon  to  see  them." 
The  train  halted  and  in  a  moment  the  arms  of  the  grown  up  girls  were 
wound  round  his  neck.    O,  for  such  skill ! 

(10)  There  it  is,  skill;  after  all — mastery  of  facts  and  mastery  of  law, 
compels  attention,  secures  fees,  creates  fame;  but  study  is  below  it  all. 
It  is  Edison's  ninety-eight  per  cent  sweat  and  two  per  cent  accident. 

(11)  I  had  omitted  two  important  means  of  winning  cases.     This 
will  illustrate:  A  German  car  builder  was  badly  mangled  by  a  heavy  car 
being  backed  over  his  left  arm  near  the  shoulder,  breaking  four  ribs  and 

xviii 


TRIAL  HINTS.  xix 

seriously  disabling  him  otherwise.  "What  else  happened  to  you?" 
"Anything  else?"  savagely  asked  counsel — as  though  he  had  exag- 
gerated— "I  don't  know,"  said  the  witness,  "/  was  dead  then."  He  burst 
into  a  flood  of  tears  that  touched  every  juror — $12,000  was  his  verdict. 
No  lawyer  could  speak  with  more  eloquence. 

And  now  to  close  the  rules  with: 

(12)  From  the  moment  you  state  your  case  to  its  close,  you  are  judged 
by  every  juror.  You  cannot  deceive  twelve  men  very  long.  Your  clear- 
ness, preparedness,  alertness,  good  temper,  good  judgment,  experience  are 
in  issue.  Note  this: 

A  German  charged  with  murder  was  identified  by  a  cap  picked  up 
near  by  while  he  was  caught  bareheaded ;  he  was  well  defended  by  the  plea : 
Stop  in  Time ;  Not  A  cap— A  cap— A  cap.  How  many,  many  caps  can 
Sworn,  He  Was  be  easily  found  to  fit,  but  how  doubtful  such  iden- 
Too  Dumb  tity!  Jury  said,  "Not  Guilty!"  As  the  people  left, 

the  Judge  said  to  the  prisoner:  "You  are  free,  you  may  go."  "But, 
schudge,  please  may  I  now  have  mine  cap!"  HE  KNEW  NOT  WHEN  TO 
STOP. 

NEW  POINT  IN  PRACTICE. 

In  the  Mclntyre  will  contest,  a  suit  to  establish  a  lost  will — or  build 
it  on  facts  and  circumstances  by  some  fifty  witnesses,  requiring  a  month 
to  try  before  a  jury — a  will  thrown  out  by  the  Probate  Court,  and  by  two 
trial  judges,  with  one  jury  disagreement,  and  at  last  in  its  third  trial,  a 
•witness  who  appeared  at  two  trials  looking  very  much  like  a  tramp,  and 
on  the  last  trial  well  dressed  in  a  new  soldier's  uniform,  was  examined 
savagely: 

"Let  me  see,  did  you  have  that  fancy  uniform  on  the  last  trial  ? 

"No,  sir. 

"Nor  on  the  other  trial  before  Judge  Hosmer? 

"No,  sir. 

'Now,  come,  Johnnie,  tell  us,  who  bought  you,  that  fine  uniform? 

"Well,  if  you  stop  long  enough  and  let  me,  I'll  tell  ye. 

"Well,  out  with  it! 

"I'm  in  the  Soldiers'  Home  at  Grand  Rapids,  and  we  all  wear  uni- 
forms." 

Johnnie,  who  had  been  a  dull  witness,  made  the  best  impression  of 
the  fifty  sworn — he  may  have  won  the  $250,000  contest. 

In  the  same  trial,  a  paper  was  offered  in  evidence  and  a  vigorous 
objection  followed — so  loud  that  the  Judge  said,  "Come,  come,  this  is 
unseemly;"  and  added: 


XX  MODEKX  JURY  TRIALS. 

"Now,  Mr.  Geer,  what  is  the  purpose  of  the  paper?" 

"Why,  your  honor,  it  is  to  give  the  jury  something    that    speaks 

louder  than  Jimmie!" 

And  the  Judge  said:  "Then,  I'll  admit  it,"  amid  great  laughter. 

Twelve  men  can  see  a  joke  and  find  its  point. 

THE  GREEK  WHEEL. 

The  wise  Greeks  said: 

Many  are  the  wonderful  things  in  the  world,  but  nothing  is  more 
wonderful  than  man.  Man  is  not  born  to  his  parents  only  but  to  his 
country. 

The  character  of  a  people  is  known  by  the  men  they  crown.  A  great 
souled  man  will  not  be  given  to  small  ambition;  he  will  be  considerate  of 
the  rights  of  others,  even  of  their  slaves;  but  of  all  things  a  great  souled 
man  will  be  an  unselfish  man. 

The  story  of  the  Greek  Wheel  takes  us  on  a  journey  across  the  world 
with  four  lines,  and,  stranger  than  all,  proves  itself  true  in  even*  sentence. 

It  is  a  dialogue  between  Cyrus  and  Croesus  over  Peace  and  War, 
when  these  strong  words  were  used  by  Croesus. 

"What  shall  we  do  with  those  Lydians?  They  do  make  up  much 
trouble,"  said  Cyrus. 

"I  would  not,  O  King,  humble  that  people,"  said  Croesus.  "They 
live  from  the  soil,  wear  leathern  garments.  They  are  ruled  by  a  woman." 
Cyrus  seemed  not  convinced,  and  Croesus  spoke  again. 

"If  thou  thinkest  that  thou  art  like  one  of  the  gods  and  no  harm  can 
come  to  thee  it  may  do,  but, 

"7  am  reminded,  O,  King  and  take  this  lesson  to  heart,  that  there  is  a 
Wheel  on  which  the  affairs  of  men  revolve,  and  its  mechanism  is  such  that 
prevents  any  man  from  being  always  fortunate." 

From  this  great  sentence,  whether  it  be  from  the  brain  of  Croesus 
or  of  Solon,  his  intimate  friend  and  associate,  one  of  the  wisest  Greeks, 
is  seen  an  avenue  across  the  world — extending  back  3300  years.  It  is 
verified  by  a  score  of  instances,  like  the  end  of  Socrates,  who  was  forced 
to  drink  the  poison  cup  at  the  height  of  his  career,  saying:  Farewell  my 
judges;  it  is  now  time  to  go  away,  for  you  to  live,  for  me  to  die:  yet  which 
of  us  shall  come  to  his  reward  and  rescue  homage  due  to  upright  con- 
science is  known  alone  to  Him  who  rules  the  world; — and  he  drank  the 
poison:  of  Demosthenes  who  was  voted  to  death  for  teaching  false  doc- 
trines to  the  youth  of  his  time:  of  Ctesar,  the  greatest  king  who  ever  lived, 
who  was  stabbed  to  death  in  his  Senate  by  his  pretended  friends:  of  Xa- 
poleon,  banished  to  St.  Helena,  five  years— a  living  death:  of  Webster  and 


TRIAL  HINTS.  xxi 

Clay,  going  backward,  in  disappointment  to  their  graves;  of  Blaine  and 
Conkling;  Coif  ax  and  Greely;  Sumner  and  Douglas;  Lincoln  and  Grant, 
and  even  down  to  General  Alger.  Oh,  how  the  Wheel  turned  with  them 
all! 

And  we  are  reminded  many,  many  times  in  life,  that  there  is  a  Wheel 
on  which  the  affairs  of  men,  of  cities,  and  of  nations  revolve  and  it  pre- 
vents us  all  from  being  always  fortunate. 

In  fact  the  Greeks  tell  us  that  the  gods  are  jealous  when  men  are  too 
happy. 


ORATORS  AND  ORATORY 

ANCIENT  AND  MODERN. 


The  charm  of  oratory,  like  music,  must  be  heard  to  be  apprecia- 
ted, and  comprehended  to  be  enjoyed.  So  little  can  be  placed 
upon  paper  that  only  rare  passages  read  well  and  bear  frequent 
repetition. 

Yet  there  are  single  speeches  that  have  changed  the  fate  of 
nations,  or  saved  a  poor,  quivering  human  being  from  a  cruel  death 
of  horrible  torture  ;  speeches  that  carry  with  them  an  inspiration 
forever,  and,  like  old,  familiar  songs,  when  repeated,  always 
awaken  a  new  interest. 

Very  much  of  an  oration  dies  with  its  author  and  the  event  that 
called  it  into  being.  A  stranger,  coming  in  suddenly  on  a  scene 
of  local  interest,  in  the  midst  of  a  stirring  speech,  would  realize  but 
faintly  the  real  spirit  of  the  occasion,  and  could  hardly  compre- 
hend its  true  beauty.  And  no  one  will  claim  that  a  clear  repeti- 
tion of  that  matchless  oration  of  Demosthenes,  in  his  contest  for  a 
crown,  which  included  those  magic  words,  "  Man  is  not  born  to  his 
parents  only,  but  to  his  country!"  could  be  delivered  by  any 
other  than  the  mighty  genius  himself,  who  had  long  been  impris- 
oned by  Alexander  ;  who  was  moved  by  the  plaudits  of  a  mighty 
people,  whose  liberty  he  believed  was  hanging  in  the  balance,  add- 
ing fire  to  his  eye,  power  to  his  voice,  soul  to  his  sentences,  and 
energy  to  his  expression. 

In  this  "  greatest  oration  by  the  greatest  orator,"  we  find  the 
famous  oath  of  Demosthenes.  "  No,  my  countrymen,  it  cannot  be 
that  you  have  acted  wrong  in  encountering  danger  bravely  for  the 
liberty  and  safety  of  all  Greece.  No  ;  I  swear  it  by  the  spirit  of 
our  sires,  who  rushed  upon  destruction  at  Marathon — by  those 
who  stood  arrayed  at  Plataoea  ;  by  those  who  fought  the  sea-fight 
at  Salamis  ;  by  the  men  at  Artemisium  ;  by  the  others,  so  many 
and  so  brave,  who  now  rest  in  our  public  sepulchers  ;  all  of  whom 
their  country  judged  worthy  of  the  same  honor  ;  all,  I  say,  Archines; 
not  only  those  who  prevailed,  not  those  only  who  were  victorious. 
And  with  reason.  What  was  the  part  of  gallant  men  ?  they  all 
performed.  Their  success  was  such  as  the  Supreme  Ruler  disposed 
to  each." 

1 


2  MODERN    JURY    TRIALS. 

The  bold,  glowing  words  and  peculiar  manner  of  Burke  in  the 
trial  of  Hastings,  closely  resemble  the  style  of  Demosthenes. 
After  a  vivid  description  of  the  horrors  inflicted  on  the  natives  of 
India  by  the  agents  of  Hastings,  during  which  many  fainted  and 
were  carried  out,  he  was  so  overcome,  said  a  writer,  as  to  be  unable, 
for  many  moments,  to  proceed  ;  and  with  bowed  head  he  waited 
several  moments  in  silence  and  deep  emotion,  and  finally  proceeded: 
"  What  is  it  that  we  want  here  to  a  great  act  of  national  justice? 
Do  we  want  a  cause,  my  i^ords  ?  You  have  the  cause  of  oppressed 
princes,  of  undone  women  of  the  first  rank,  of  desolated  provinces 
and  of  wasted  kingdoms. 

"  Do  you  want  a  criminal,  ray  Lords  ?  When  was  there  so  much 
iniquity  ever  laid  to  the  charge  of  any  one  ?  No,  my  Lords,  you 
must  not  look  to  punish  any  other  such  delinquent  from  India. 
Warren  Hastings  has  not  left  substance  enough  in  India  to  nourish 
such  another  delinquent. 

"  My  Lords,  is  it  a  prosecutor  you  want  ?  You  have  the  Com- 
mons of  Great  Britain  as  prosecutors,  and,  I  believe,  my  Lords,  that 
the  sun  in  his  beneficent  progress  round  the  world,  does  not  behold 
a  more  glorious  sight  than  that  of  men,  separated  from  a  remote 
people  by  the  material  bounds  and  barriers  of  nature,  united  by  the 
bond  of  a  social  and  moral  community — all  the  Commons  of  Eng- 
land resenting,  as  their  own,  the  indignities  and  cruelties  that  are 
offered  to  all  the  people  of  India  ! 

"  Do  we  want  a  tribunal  ?  my  Lords,  no  example  of  antiquity, 
nothing  in  the  modern  world,  nothing  in  the  range  of  human  imag- 
ination, can  supply  us  with  a  tribunal  like  this.  •  My  Lords,  here  we 
see  virtually,  in  the  mind's  eye,  that  sacred  majesty  of  the  crown, 
under  whose  authority  we  sit,  and  whose  power  you  exercise.  We 
see  in  that  invisible  authority,  what  we  all  feel  in  reality  and  life, 
the  beneficent  powers  and  protecting  justice  of  his  majesty.  .  . 
I  impeach  Warren  Hastings  of  high  crimes  and  misdemeanors. 

"  I  impeach  him  in  the  name  of  the  Commons  of  Great  Britain. 
In  the  name  of  those  eternal  laws  of  justice  which  he  has  violated  : 
.  .  .  I  impeach  him  in  the  name  of  human  nature  itself,  which 
he  has  cruelly  outraged,  injured  and  oppressed,  in  both  sexes,  in 
every  age,  rank,  situation  and  condition  of  life.  .  .  .  My  Lords, 
I  have  done.  The  part  of  the  Commons  is  concluded.  With 
trembling  hands  we  consign  the  product  of  these  long,  long  labors 
to  your  charge  !  Take  it !  Take  it, !  It  is  a  sacred  trust.  Never 
before  was  a  cause  of  greater  magnitude  submitted  to  any  human 
tribunal  !" 


ORATORS  AND  ORATORY.  $ 

He  was  followed  by  Sheridan,  that  magic  of  impulsive  oratory 
and  eloquence,  in  a  speech  so  grand  and  lofty,  that  the  people  sat  five 
hours,  spell-bound.  No  report  was  ever  made  of  the  words,  and 
none  could  be  made,  of  the  fiery  sentences  as  uttered;  no  pen 
could  sketch  the  keen,  magnetic  look;  the  low,  persuasive  tones; 
the  loud,  vindictive  manner;  the  power  and  play  of  passions,  like 
the  actor  in  the  scene. 

This  style  of  Demosthenes  was  employed  by  Lord  Chatham,  the 
eloquent  defender  of  America,  in  England,  in  the  time  of  the 
Stamp  Act,  when  he  said  :  "  If  I  were  an  American,  as  I  am  an 
Englishman,  while  a  foreign  troop  was  landed  in  my  country,  I 
would  never  surrender  !  Never  !  Never  !  Never  ! "  And  by  the 
same  statesman,  in  his  appeal  for  personal  rights,  when  he  said  : 
"The  poorest  man,  in  his  cottage,  may  bid  defiance  to  all  the 
forces  of  the  crown;  it  may  be  frail;  the  winds  of  winter  may 
blow  through  it;  the  storm  may  enter  it — but  the  King  of  England 
can  not  enter;  all  his  forces  dare  not  cross  the  threshold  of  the 
ruined  tenement !  "* 

Once  in  an  age  will  be  born  other  men,  and  other  events,  which 
may  resemble,  but  will  never  excel,  such  scenes  of  mental  contest. 
What  was  then  voiced  by  a  half  dozen  leaders,*  is  now  sown  broad- 
cast by  a  million  papers — saying  in  advance  all  that  is  new  or 
novel  in  our  great  achievements.  Once  in  a  while,  men  like  Henry 
will  utter,  "  Give  me  liberty  or  give  me  death  ! "  to  remind  us  of 
Grecian  oratory,  but  they  will  find  it  a  well-told  story,  often  read. 
And  but  for  a  Webster,  this  powerful  style  of  a  Demosthenes 
would  have  died  before  our  day.  It  passed  from  the  stage  of 
actual  oratory,  and  had  lain,  half  forgotten,  nearly  a  century,  when 
Hayne  aroused  Webster,  in  the  Senate,  to  great  thoughts,  that 
leaped  to  the  immortal  by  a  single  bound;  thoughts  that  could  flow 
in  no  other  channel  but  the  heroic  and  sublime.  In  his  reply 
to  Hayne,  that  greatest  effort  ever  made  in  modern  times,  the  audi- 
ence sat,  silent,  and  when  the  giant's  voice  rang  out  through  the 
Senate  and  the  halls,  and  penetrated  every  room  as  he  said,  with 
such  soul-stirring  emphasis  : 

"  Nor  those  other  words  of  delusion  and  folly,  '  Liberty  first  and 
union  afterwards;'  but  everywhere,  spread  all  over,  in  characters 
of  living  light,  blazing  on  all  its  ample  folds,  as  they  float  over  the 
sea  and  over  the  land,  and  in  every  wind  under  the  whole  heavens, 
that  other  sentiment,  dear  to  every  American  heart,  '  Liberty  and 
union,  now  and  forever,  one  and  inseparable  /'" 

The  audience  remained  seated  in  silence;  "hands  sought  each 

•  "  Orator*  and  Statesmen,"  by  Harcha. 


4  MODERN  JURY  TRIALS. 

other,  eye  turned  to  eye,  and  hundreds  hung  breathless  on  the  echo 
of  the  orator's  words."  No  orator  ever  excelled  the  effect  of  this 
master  eulogy  on  our  country.  And  no  one  can  doubt  that,  in 
Burke's  place,  Webster  would  have  fully  equalled  Burke,  or,  in 
Greece,  even  might  have  equaled  Demosthenes. 

But  there  is  another  kind  of  oratory,  described  by  Cicero  as  the 
art  of  saying  things  in  a  manner  to  please  and  persuade,  a  mingling 
of  passion  and  reason — thoughts  set  on  fire,  the  sudden  birth  of  a 
new  expression,  of  grand  ideas,  by  looks  and  words  and  actions — 
the  means  by  which  men  are  moved.  This  style  of  Cicero  was  not 
original.  He  studied  it  in  Greece  for  years,  wholly  enraptured 
with  the  noble  art.  It  was  not  Roman,  but  he  gave  it  a  Roman 
cast,  and  later  historians  called  it  so  because  it  influenced  Roman 
minds.  It  was  neither  the  style  of  Demosthenes  or  Pericles,  but 
of  students  of  the  great  Grecian  masters.  Thus  oratory  has  been  a 
borrowed  art  for  ages. 

This  is  the  kind  of  oratory  more  suited  to  our  day.  It  was 
employed  by  the  gifted  and  graceful  Roman  orator,  in  his  plea  for 
a  Roman  citizen.  It  has  more  of  the  grace  and  charm  of  music 
and  the  art  of  persuasion,  coupled  with  an  ease  of  delivery  that 
tells  men  to  act  in  a  way,  never  to  refuse  the  simple  and  sensible 
request,  that  steals  in  on  the  senses  by  surprise,  and  takes  us  cap- 
tive at  its  will. 

Eloquence  is  described  as  close,  rapid,  powerful,  practical  reason- 
ing, animated  by  intense  passion,  and  speaking  in  a  manner  proper 
to  persuade.  An  excellent  example  is  of  Cicero  on  the  execution 
of  Gavius:  "In  the  middle  of  the  forum  of  Messana,  a  Roman  cit- 
izen was  beaten  with  rods,  and  between  the  blows  were  heard  '  I  am 
a  Roman  citizen ! '  as  if  to  ward  off  pain  and  torture  from  his  per- 
son; and  as  he  kept  on  repeating  his  entreaties,  'A  cross,  I  say,  a 
cross  ! '  a  cross  was  made  ready  for  the  miserable  man.  O,  sweet 
name  of  liberty  !  O,  admirable  privilege  of  citizenship  !  O,  Por- 
cian  law  !  O,  power  of  the  tribunes,  bitterly  regretted  by,  and  at 
last  restored  to  the  Roman  people,  in  a  town  of  confederate  allied, 
that  a  Roman  citizen  should  be  bound  in  a  forum,  beaten  with  rods 
by  a  man,  who  only  had  fasces  and  axes  through  the  kindness  of  the 
Roman  people  !  What  shall  I  say  when  fire  and  red-hot  plates 
and  other  instruments  were  employed  to  torture  him  ?  If  the  bit- 
ter entreaties  and  agonizing  cries  of  that  man  had  no  power  to 
restrain  you,  were  you  not  moved  by  the  weeping  and  groans  of 
the  Roman  citizens,  who  were  present  at  the  time.  Men  born  in 
obscure  ranks,  go  to  sea,  to  places  never  seen  before,  and,  owing  to 
the  confidence  of  their  citizenship,  they  shall  be  safe.  It  is  a  crime 


ORATORS  AND  ORATORY.  6 

to  bind  a  Roman  citizen;  to  scourge  him  is  wickedness,  to  put  him 
to  death  almost  a  parricide.  What  shall  I  say  of  crucif ying  him  ? 
It  was  not  Gavius.  It  was  not  one  citizen.  It  was  the  common 
cause  of  freedom  !  exposed  to  torture  and  nailed  on  that  cross  !  " 

The  new  star  in  English  eloquence  came  with  Erskine,  with  the 
style  and  elaborate  finish  of  a  Cicero,  sparkling  in  imagination, 
replete  with  graceful  gesture,  elegance  of  expression,  charm  of 
manner,  and  refinement  of  sensibility,  that  won  with  an  audience, 
pleased  and  persuaded.  He  was  slow  at  first  in  development, 
but  want  and  poverty  drove  him  to  the  law,  and  when,  as  he  says, 
"It  seemed  as  if  my  little  children  were  tugging  at  my  skirts, 
begging  for  bread,"  he  cut  loose  from  restraint  and  became  a  nat- 
ural orator.  His  warm,  rich,  brilliant  sentences,  ready  and  reten- 
tive memory,  powerful  imagination,  and  elegant  expressions, 
acquired  by  living  in  the  language  of  Milton  and  Shakespeare,  are 
read  as  masterpieces  by  thousands  the  world  over. 

Of  the  few  whose  orations  and  speeches  read  well,  far  removed 
from  the  scenes  that  made  them,  are  those  of  Cicero,  Erskine, 
Webster  and  Everett,  and  of  these  the  world  will  never  tire  of 
hearing.  It  is  said  that  the  single  oration  of  Everett,  on  Washing- 
ton, was  delivered  over  a  hundred  times,  in  the  different  cities  of 
the  Union,  and  always  to  interested  audiences. 

As  the  style  of  Webster  was  grand  and  vehement,  like  Demos- 
thenes, the  words  and  manner  of  Everett  resemble  Cicero.  That 
same  copious  flow  of  beautiful,  elaborate  imagery,  the  refined, 
melodious  sentences,  the  elegant  and  persuasive  delivery,  the  rare 
sympathy  and  finish,  the  matchless  arrangement  of  happy  thoughts, 
gave  a  harmony  to  his  utterances  that  will  never  be  forgotten. 

Space  allows  but  one  selection,  old  and  yet  ever  new,  for  it  never 
has  been  excelled  in  all  the  annals  of  eloquence. 

Horace  Greeley  said  this  speech  of  Mr.  Everett,  and  Mr.  Lin- 
coln's speech  at  Gettysburg,  and  John  Brown's  address  at  Harper's 
Ferry,  were  the  masterpieces  of  American  oratory.  I  would 
change  from  Mr.  Brown's  speech  to  Mr.  Webster's,  and  agree  with 
Mr.  Greeley. 

But  here  are  the  words  of  Everett  that  tell  their  own  story: 

"  Welcome,  friend  of  our  fathers,  to  our  shores  !  Happy  are 
our  eyes,  that  behold  those  venerable  features  !  Enjoy  a  triumph, 
such  as  never  conquerer  or  monarch  enjoyed — the  assurance  that, 
throughout  America,  there  is  not  a  bosom  which  does  not  beat  with 
joy  and  gratitude  at  the  sound  of  your  name.  Welcome  !  thrice 
welcome,  to  our  shores  !  and  whithersoever  your  course  shall  take 


•  MODERN  JURY  TRIALS. 

you,  throughout  the  limits  of  the  continent,  the  ear  that  hears  you 
shall  bless  you,  the  eye  that  sees  you  shall  give  witness  to  you, 
and  every  tongue  exclaim,  with  heart-felt  joy,  '  Welcome  !  welcome, 
Lafayette  ! ' " 

In  classic  beauty  and  polished  sentences  Cicero  seldom  equaled 
and  never  excelled  these  passages.  As  has  been  said,  tone,  voice, 
manner,  gesture  and  expression  die,  in  a  large  degree,  with  a 
speaker;  they  can  not  be  reproduced  in  print.  While  this  is  true 
of  Mr.  Everett,  it  was  doubly  true  of  Mr.  Webster,  whose  swell  of 
voice  and  ponderous  sentences  were  ^fit  expressions  of  a  giant 
mind  that  the  cold  printed  page  can  never  convey. 

If  this  rapid  glance  at  the  orators  of  renown,  and  a  few  gems  of 
their  sayings,  may  serve  to  interest  a  reader,  on  themes  gone  by, 
how  much  more  should  our  later  events  and  modern  court  trials 
and  orations  serve  to  stimulate  the  advocate  of  to-day,  as  he  reads 
the  points  worth  preserving,  and  too  often  lost,  of  trials  within 
twenty  years  in  which  orators  of  our  times  have  contended  in  men- 
tal duels,  where  ripened  learning  meets  an  equal  foe,  and  where 
advanced  civilization  crystalizes  the  good  and  eliminates  the  ver- 
biage of  ancient  oratory;  where  the  higher  intelligence  of  mankind 
demands  that  the  methods  of  practice  shall  grow  clearer  and  terser, 
to  keep  pace  with  the  progress  of  the  age. 

The  orators  of  to-day  are  the  Wires  and  the  Presses.  The  elo- 
quence is  often  supplied  by  the  editor's  quill.  But  there  is,  and 
always  will  be,  a  demand  for  stirring  and  eloquent  speeches,  in 
court,  in  Congress,  and  on  the  rostrum.  It  is  felt  to-day  as  with 
the  ancients,  only  in  a  less  quantity  and  more  refined  degree. 

The  oration  of  Ingersoll  at  Cincinnati  in  '76,  the  master  speeches 
of  Conkling  and  Garfield  at  Chicago  in  1880,  or  the  thrilling  eulogy 
of  Daniel  Dougherty  on  Hancock  the  same  season,  were  delivered 
with  as  much  energy  and  effect  as  the  speeches  of  Clay  and  Cal- 
houn,  and  but  for  the  power  of  the  press,  which  had  filled  and 
prepared  the  people,  the  multitude  would  have  been  carried  cap- 
tive at  the  will  of  the  speakers  (as  in  the  last  instance  they  seem  to 
have  been).  Men  and  manners  may  change,  but  truths  and  pas- 
sions are  eternal.  Fear,  hope,  reward  and  human  sympathy  always 
have  been  and  always  will  be  subject  to  influences,  and  are  swayed 
by  the  power  of  great  minds,  acting  on  minds,  through  the  medium 
of  eloquence. 

There  are  thoughts  and  themes  that  grow  by  repetition,  like  the 
songs  of  Burns  and  Whittier,  and  the  plays  of  Shakespeare. 

Orators  have  arisen,  and  will  arise,  who  voice  one  event  and  one 


ORATORS  AND  ORATORY.  7 

occasion;  men  with  neither  learning  nor  grace,  nor  logic,  nor  fine 
words,  but  with  the  rugged  manner  of  a  native  Indian,  drawing 
their  inspiration  from  the  Almighty,  with  a  genius  born  of  heaven, 
grouping  some  homely  thoughts  in  eloquent  delivery. 

Some  one  shall  say  again,  in  that  beautiful  rhythm  of  sympathy 
and  grandeur,  "  Let  it  rise!  Let  it  rise!  till  it  meet  the  Sun  in  the 
glory  of  his  coming! "  Some  one  will  "look  on  a  sea  of  upturned 
faces,"  who  has  not  the  gift  to  raise  mortals  to  the  skies,  nor  that 
other  power  to  drag  angels  down! 

"  Modern  civilization,"  says  a  great  writer,  "  is  the  difference 
between  an  Indian's  hut  and  a  lady's  parlor."  But  oratory  has  not 
advanced  in  that  degree,  for  the  brightest  orations  of  our  day  have 
never  excelled  those  of  the  ancients;  nor  have  the  most  cultivated 
speakers  ever  used  choicer  words  than  did  the  little  Indian  girl  at 
Omaha,  who  spoke  in  the  simplest  language  of  Nature,  when  she 
said,  "  It  is  but  a  little  thing  my  people  ask,  yet  infinite  in  its  con- 
sequences; they  ask  for  liberty,  and  law  is  liberty  !  " 

By  saying  that  eloquence  is  often  born  and  never  made,  it  may 
as  well  be  said  that  oratory  is  oftener  made  than  born.  The  true 
orator,  like  the  wrestler,  walker,  or  oarsman,  is  a  thoroughly 
trained  and  skillful  man,  read  and  cultivated  to  the  art  assumed;  he 
has  to  deal  with  an  age  of  reason,  and  he  must  deal  in  living  lines 
of  history,  science  and  events;  he  must  be  "burnished  like  a  sil- 
vered sabre,  without  one  rusty  spot."  American  advocates  have 
realized  this  requirement.  They  are  terser,  clearer  and  more 
industrious  and  ingenious  every  decade.  They  are  growing  more 
fertile  in  resources.  Fifty  years  ago  the  plea  of  emotional  insan- 
ity was  unknown;  now  it's  a  sheet  anchor  to  the  rich  and  influ- 
ential! 

Counsel  do  not  all  plead  for  insanity,  and  a  clearer  picture 
of  law  and  its  uses  will  never  be  made  than  that  beautiful 
word  painting  of  Major  Gordon,  when  he  describes  how  "It 
gurrounds  us  like  the  air  we  breathe,  and  lived  before  our 
being;  that  meets  us  in  our  helpless  infancy,  shields  us  with  a 
mother's  tenderness,  follows  us  through  the  perilous  journey  of  our 
lives,  guards  our  liberty  from  the  cradle  to  the  coffin,  and  defends 
our  persons  and  property  from  harm;  walks  with  us  to  the  verge  of 
the  deep,  dark  valley,  protects  our  lifeless  remains  in  peace  till  the 
coming  of  the  resurrection!  Nay,  even  the  sweet  rose,  planted  by 
the  hand  of  affection,  or  the  wild  flower  growing  on  our  graves, 
shall  all  be  guarded  by  the  strong  arm  of  law! " 

A  graphic  description  of  law  and  evidence  is  aptly  given  by  Mr. 
Lothrop,  when  he  says  :  "All  the  mists  are  cleared  away.  Th« 


ft  MODERN  JURY  TRIALa 

obscurity  that  surrounded  this  case  has  disappeared.  It  is  as  though 
the  walls  of  that  bank  were  lifted  up  and  the  bright  September  sun 
should  stream  in,  and  show  the  dreadful  deedl  In  the  light  of  all 
this  evidence,  you  see,  standing  over  the  body  of  his  prostrate  vic- 
tim, his  hands  dripping  with  blood,  the  murderer  of  Herbert 
Field!"  Truly  the  walls  are  lifted,  and  we  look  in! 

The  sturdy  appeal  of  General  Browne,  for  the  law's  vindication, 
is  given  in  the  Hetfield  homicide:  "Take  this  widow,  and  her 
helpless  orphan  children,  and  go  to  that  lone  and  lonely  kirk  yard, 
and,  standing  by  the  grave  of  Calvin  Hetfield — unmarked  by 
stone  or  monument — and,  in  view  of  the  great  sorrow  that  this 
defendant  has  brought  into  the  world,  there,  there  write  your  ver- 
dict!" 

The  sweeping  and  dramatic  sentence  of  Storrs,  in  the  defense  of 
Babcock,  is  excellent:  "  He  is  not  guilty,  gentlemen,  he  is  not 
guilty!  I  feel  an  inspiration  settling  in  this  court  room,  stretching 
away  to  Washington,  as  if  to  bear  the  glad  news  to  his  devoted 
family,  who,  in  his  humble  home,  where  an  anxious  wife,  now  sur- 
rounded by  her  little  children,  are  kneeling,  watching,  praying  and 
looking  to  God!  for  his  deliverance  and  joyous  return  to  the  capi- 
tal of  his  country,  that  he  has  served  ao  long,  so  faithfully,  and  so 
well!" 

Here  the  speaker  carries  his  hearers  a  thousand  miles  with  a 
single  sentence. 

The  massive  periods  of  Seward,  and  prophetic  forethought  of 
Van  Dyke  are  too  full  of  the  sublime  to  afford  a  separation  for 
introductory  extracts.  They  will  be  found  in  extended  paragraphs 
in  the  cases  to  which  they  pertain. 

And  again,  the  sterner  words  of  Judge  Ryan:  "Whether  they 
come  in  the  soft,  white  gloves  of  peace,  or  the  dark,  bloody  gaunt- 
lets of  war,"  breathe  forth  a  Roman  beauty 

The  deep  drawn  pathos  of  Graham, "  Long  enough  has  he  endured 
the  pelting  of  this  pitiless  storm;  and  who  does  not  hope  that  he 
will  find  an  asylum  in  your  justice,  and  that  it  will  be  seasoned 
with  mercy,  as  you  yourselves  expect  to  be  forgiven!  "  is  thick 
with  emotion. 

The  homely  eloquence  of  McReynolds,  pleading  for  the  little 
orphans  is  rare:  "  My  work  is  done,  gentlemen;  but  you  will  do  a 
better  work.  Even  now,  by  your  silence  and  your  interest  in  this 
case,  methinks  I  hear  you  say, '  Stop !  delay  not  longer!  Let  us  begi n 
this  work  of  justice.  Stop!  that  we  may  rebuke  this  cruel  com- 
pany. Stop!  that  we  may  restore  these  orphans  to  their  own!  to 
that  pure  character  that  they  will  love  to  honor;  a  character  ai 


ORATORS  AND   ORATORY.  9 

pure  as  they  knew  their  mother  on  that  last  and  long  good-night, 
the  night  before  the  night  of  death  !  Stop  !  till  we  give  a  verdict 
that  will  vindicate  a  mother's  name  and  a  mother's  love  for  her 
children  !' " 

Arnold's  appeal  in  Hubbell's  case  is  pathetic  :  "And,  in  yonder 
cottage,  almost  within  the  hearing  of  my  voice,  there  is  yet  another 
who  is  waiting,  with  intense  solicitude,  the  result  of  your  delibera- 
tions. She  waits,  in  unshaken  confidence  and  devoted  love,  for  the 
accused.  She  is  in  deed,  as  well  as  in  law,  the  wife  of  her  husband, 
and  she  would  clasp  that  man  to  her  breast,  though  her  arm  were 
in  a  flame  of  living  fire  till  it  burned  to  its  very  socket !  Her 
prayers  are  all  around  you — her  hopes  are  all  dependent  on  you 
On  bended  knee,  and  with  eye  uplifted  prayerfully  to  Heaven,  be- 
fore you,  she  implores  you  :  '  O,  give  me  back  the  husband  of  my 
youth  !  I  can  surrender  him  to  God — I  can  surrender  him  to  my 
country — but  O  !  spare  the  blow  which,  while  it  destroys  him, 
dooms  me  to  lean  upon  a  broken  reed,  and  to  a  life  without  a 
hope  !' " 

The  stirring  sentences  of  Beach  are  rhythms  of  beauty:  "They 
were  married  when  he  enjoyed  the  bloom  of  her  youth  and  heart's 
loving  tenderness  !  Married  when  it  flattered  his  vanity  to  control 
her  beauty !  Married  when  she  went  through  the  valley  and 
shadow  of  death  to  bear  his  children  !  But  when  of  all  times  mar- 
riage is  most  sacred,  when  they  should  be  leading  each  other  along 
the  western  hill  slope,  to  rest  together  at  its  foot,  then  it  is  he  seeks 
to  cast  her  o^and  call  the  contract  spurious  !" 

Again,  the  touching  and  brilliant  appeal  of  Voorhees,  for 
Mary  Harris,  moved  all  hearts  within  hearing  :  "  The  wife  who  is 
graced  by  her  husband's  love  is  more  beautifully  arrayed  than  the 
lilies,  and  envies  not  the  diadems  of  queens  !  But  to  the  young 
virgin  heart,  more  than  all,  when  the  kindling  inspiration  of  its  first 
and  sacred  love  is  accompanied  with  a  knowledge  that  for  it,  in 
return,  there  beams  a  holy  flame,  there  comes  an  ecstacy  of  the 
soul,  a  rapturous  exhalation  more  divine  than  will  ever  again  be 
tested  this  side  of  the  bright  waters  and  perennial  fountain  of  par- 
adise !  O,  how  her  prison  cell  has  been  lighted  by  the  purest  and 
gentlest  of  her  sex,  and  delicate  flowers  from  the  loftiest  statesman 
in  the  world,  have  mingled  their  odors  with  the  breath  of  her  cap- 
tivity !  In  the  name  of  Him  who  showers  his  blessings  on  the 
merciful,  who  gave  the  promise  to  those  who  feed  and  clothe  th« 
hungry  strangers  at  their  gates,  unlock  the  prison  door,  and  bid  het 
bathe  her  throbbing  brow  once  more  in  the  healing  air  of  liberty  /" 


MODERN   JURY  TRIALS 

AND    ADVOCATES. 


MATT.    WARD    CASE. 

Tried  at  Eltiabethtown,  Ky.,  April,  1854. 

Considered  in  the  light  of  interest,  incident,  character  of  parties, 
witnesses  and  counsel,  few  cases  have  excited  such  general  com- 
ment in  the  south  as  the  eloquent  defense  of  Ward  for  the  killing 
of  Prof.  Butler. 

The  story  of  the  case  is  a  brief  one.  Three  brothers,  Wil- 
liam, Robert  and  Matt.  Ward,  had  an  altercation  with  Prof. 
Butler,  the  teacher  of  William,  and  other  young  men  from  sixteen 
to  twenty-two  years  of  age,  of  high  spirits  and  aristocratic  origin, 
ID  Louisville,  Ky.,  and  in  the  course  of  the  controversy  the  teacher 
called  William  a  liar,  and  was  called  on  by  the  brothers  for  a 
retraction.  Butler  refused,  and  Ward  called  him  "  a  d d  ras- 
cal and  a  d d  coward."  Butler  clinched,  and  Ward  shot  him, 

fatally,  in  the  left  lung,  with  a  pistol,  which  he  bought  that  morn- 
ing and  had  lately  loaded. 

Such  a  trial  in  the  south  is  never  forgotten. 

The  theory  of  the  defense  was  well  stated  by  the  words  of  Gov. 
Crittenden,  "A  blamable  necessity;  not  justifiable,  but  excusable." 
There  was  a  conflict  of  testimony  as  to  which  struck  first,  but  it  is 
clear  that  Ward  was  the  weaker  man  and  harmless  generally,  of 
excellent  character,  had  traveled  abroad,  written  some  acceptable 
work,  was  highly  respected  (as  was  Butler),  but  no  match  for  But- 
ler in  a  hand  to  hand  conflict. 

The  prosecution  argued  that  it  was  a  premeditated  killing;  that 
the  newly  bought  and  loaded  pistol  proved  it;  that  the  insulting 
words  showed  it;  that  satisfaction  meant  shooting  to  kill  and  mur- 
der. They  made  a  strong  showing  on,  "  If  the  case  was  reversed, 
and  had  Butler  killed  Ward/br  a  grossly  indecent  attack,  could  he 
not  be  justified  ?  If  so,  Ward  was  guilty." 

The    speeches    of    General    Wolfe.    Governor    Crittenden    and 


12  MODERN  JURY  TRIALS. 

Tom  Marshall,  were  extremely  able,  and  passages  very  eloquent 
The  beautiful  quotations  from  a  visit  to  the  scenes  of  the  Saviour's 
crucifixion,  and  an  allegory  of  the  creation  of  man,  were  used  with 
effect;  where  Justice,  Truth  and  Mercy  come  and  plead  with  the 
Creator,  saying,  "  Make  him  not;  he  will  defile  Thy  temple.  Make 
him  not;  he  will  set  at  defiance  Thy  law,"  and  finally  Mercy  says, 
"O,  make  him,  Father!  and  I  will  follow  him  and  bring  him  back 
to  Thee!"  These  are  all  brought  out  in  the  highly  interesting 
and  rhetorical  arguments  of  counsel.  Ex-President  Hayes  was 
among  the  distinguished  advocates.  The  trial  lasted  nine  days. 
There  was  a  defense  of  self  defense,  anckno  more. 

From  first  to  last  this  trial  U  striking  and  peculiar.  The  order 
and  courtesy  are  commended  as  models  of  jury  practice.  To  follow 
in  the  steps  of  these  distinguished  counsel  (all  of  national  fame),  is 
a  sure  road  to  correct  practice.  They  are  safe  authority  on  the  art 
and  sagacity  of  management. 

The  defense  secured  a  change  of  venue  from  Jefferson  to  Hardin 
Circuit,  and  obtained  a  fair  and  impartial  jury  by  only  one  chal- 
lenge. 

The  clerk  then  read  the  indictment,  and  the  court  gave  a  brief 
charge  to  the  jury,  showing  how  they  should  find  not  guilty  or 
guilty,  and,  if  guilty,  to  state  the  degree  of  murder  or  man- 
slaughter. Some  twenty  or  thirty  witnesses  were  sworn,  showing 
the  quarrel  and  the  shooting,  the  last  words  and  the  death  of  But- 
ler; the  strength  and  conduct  of  each,  the  purchase  of  the  pistol, 
etc.,  ending  in  the  character  of  Ward,  which  was  proven  to  be 
excellent  by  a  score  of  men  reaching  as  high  as  Geo.  D.  Prentice, 
of  the  Courier- Journal,  and  the  Mayor  of  Louisville. 

There  was  a  terseness  and  directness  in  the  order  of  the  trial 
seldom  equalled.  The  C9urt  admitted  the  testimony  of  the  custom 
to  carry  arms  in  Kentucky  ;  of  Robert  Ward,  a  co-defendant,  who 
was  present  at  the  shooting  (this  after  long  debate).  The  testi- 
mony of  Mrs.  Butler  was  singularly  impressive.  When,  in  referring 
to  her  husband's  last  words,  she  covered  her  face  with  her  veil  and 
remained  silent,  she  was  allowed  to  retire  without  cross-examina- 
tion. The  following  is  a  sample  "  passage  at  arms  "  by  counsel: 

WITNESS,  to  Mr.  Carpenter. — Attend  church  sometimes;  have 
been  in  the  Sabbath  school  a  few  times. 

Mr.  MARSHALL — Does  the  gentleman  desire  to  prove  that  his 
witness  is  an  infidel,  and  that  his  religious  education  has  been 
entirely  neglected  ?  If  so,  we  readily  admit  it!  (Laughter.) 

The  COUET — Such  questions  seem  to  be  unnecessary,  and  I  trust 
be  omitted  in  the  examination. 


MATT.  WARD  CASE.  13 

Mr.  CARPENTER — Certainly,  if  they  are  deemed  improper.  And 
this  seems  to  be  hardly  the  place  for  the  theatrical  performances  w> 
have  just  witnessed. 

Mr.  MARSHALL — There  is  a  great  variety  of  theaters  in  this 
world,  and  you  have  performed  characters  in  some  of  them  that  are 
by  no  means  enviable. 

Mr.  CARPENTER — So  have  you,  sir. 

The  COURT — I  must  insist  that  the  gentlemen  refrain  from 
remarks  of  this  character. 

Mr.  MARSHALL — I  desire  to  treat  the  court  with  all  due  respect; 
but,  sir,  the  gentleman  has  addressed  a  personal  charge  to  me,  and 
I  felt  bound  to  retort.  He  has  accused  me  of  assuming  theatrical 
airs,  which  I  must  certainly  repel.  Why,  sir,  my  manners  are  the 
most  natural  in  the  world,  and  have  been  too  long  worn  to  be 
thrown  off  at  this  late  day.  And  when  a  personal  and  insulting 
remark  is  made  commenting  upon  them,  I  need  not  say  that  it  is 
offensive. 

Mr.  CARPENTEB — I  intended  no  insult  to  Capt.  Marshall — it  was 
merely  a  side-bar  remark. 

The  COURT — Let  the  case  proceed  without  further  interruption. 

James  M.  Allen,  sworn — Reside  in  Yazoo  City,  Mississippi,  was 
in  Louisville  in  November  last;  on  the  day  of  the  accident,  in  the 
morning,  I  was  sitting  in  the  office  of  a  hydropathic  establishment, 
where  I  was  a  patient,  when  Mr.  Sturges  entered  and  said:  "For 
GOD  ALMIGHTY'S  sake  run  for  a  doctor;  Prof.  Butler  has  been  shot, 
and  is  killed!  "  He  ran  out,  and  just  then  Matt,  and  William  Ward 
passed  the  door  of  the  office;  I  started  to  Dr.  Caspari's  office,  but 
saw  one  of  the  school-boys  before  me,  and  did  not  go;  Gudgel  and 
myself  then  went  towards  the  school  house;  in  the  yard  in  front  of 
it  there  were  some  ten  or  fifteen  boys;  went  in  and  made  some 
inquiries;  one  of  the  lads  was  Mr.  Worthington's  boy — the  others  I 
had  frequently  seen,  having  often  exercised  in  the  gymnasium  with 
them;  they  were  pupils  there;  I  asked  where  Mr.  Butler  was;  I 
passed  up  the  steps  and  shook  hands  with  young  Worthington,  and 
addressed  the  question  to  him;  think  he  replied  that  Butler  was 
gone;  I  then  asked  how  this  happened;  the  boys  were  all  collected 
around  me  and  seemed  anxious  to  communicate;  several  of  them 
answered  my  question,  and  Worthington,  though  he  did  not  speak, 
nodded  his  head  in  assent. 

Mr.  CRITTENDEN — What  was  the  answer  you  received? 

The  prosecution  objected  to  the  question,  contending  that  the 


14  MODERN  JURY  TRIAIA 

expressions  of  the  school-boys  could  not  be  evidence  unless  they 
were  identified  as  the  individual  boys  who  had  testified  here. 

The  witness  had  understood  Worthington  to  assent  to  the  state- 
ments made  by  the  other  boys  at  the  time.  The  court  therefore 
ruled  the  question  to  be  legitimate. 

WITXKSS — Several  boys  spoke  at  once,  and  replied  that  Ward 
came  there  and  cursed  Butler;  that  Butler  then  struck  him  and 
Ward  fired;  think  one  of  the  boys  said  Butler  took  hold  of  Ward. 

This  testimony,  except  so  far  as  relating  to  Worthington,  was 
ruled  out  by  the  court. 

J.  T.  Gudgel,  sworn  —  Accompanied  Mr.  Allen  to  the  school 
house  after  the  unfortunate  affray;  Butler  had  gone,  but  there  were 
fifteen  or  twenty  boys  about  there;  we  inquired  how  the  matter 
occurred;  addressed  the  inquiry  to  the  whole  crowd  of  boys  who 
were  there;  did  not  know  any  of  the  boys;  five  or  six  answered  that 
Ward  had  come  to  demand  an  apology  of  Butler;  that  Butler  had 
refused  to  give  an  apology,  and  ordered  him  out  of  doors;  all 
said  that  Butler  had  struck  the  first  blow,  and  Ward  had  then 
fired;  some  of  them  said  Butler  had  pushed  Ward  back  and  nearly 
thrown  him  down,  and  that  as  he  was  getting  up  he  fired  the  pis- 
tol 

Mr».  Harney y  sworn — Am  the  wife  of  Mr.  Harney,  editor  of  the 
LouisviUe  Democrat.  When  I  reached  home  Prof.  Butler  was 
already  there;  I  found  him  lying  on  the  rug  in  the  parlor;  the 
house  was  full  of  people;  I  did  not  speak  to  him  until  some  three 
quarters  of  an  hour  after  I  returned;  then  had  a  conversation  with 
him;  when  I  entered  the  room  he  raised  his  hand  to  me  in  recognition; 
I  knelt  by  his  side  and  begged  him  to  be  composed;  he  seemed  very 
much  agitated;  I  told  him  to  be  quiet,  as  much  depended  on  it; 
that  the  physician  thought  it  was  only  a  flesh  wound,  and  we 
hoped  he  would  recover;  he  said  he  could  not,  and  repeated  the 
same  words;  he  said,  "No,  do  not  be  deceived — I  cannot  live; 
when  I  am  gone,  will  you  be  kind  to  my  poor  wife  and  baby  ?  " 
He  then  desired  to  see  Mrs.  Butler;  he  seemed  impressed  with  the 
conviction  that  the  wound  was  mortal;  I  was  with  him  until  his 
death.  I  brought  Mrs.  Butler  in  at  his  request;  he  died  the  same 
night,  between  12  and  1  o'clock. 

Mrs.  Elizabeth  Butler,  sworn — When  Mrs  Harney  took  me  to 
my  husband,  he  told  me  not  to  be  deceived — that  he  was  dying;  I 
told  bin  to  be  calm,  that  the  physicians  thought  he  would  recover. 


MATT.  WARD  CASE.  15 

bnt  that  every  thing  depended  on  his  being  kept  quiet;  he  said, 
"No,  Lizzie,  don't  deceive  yourself— I  am  dying;"  he  thought, 
until  his  death,  that  the  wound  was  fatal.  *  *  * 

Witness  was  here  overcome  with  emotion,  and,  trying  in  vain  to 
conceal  her  tears,  covered  her  face  with  her  veil. 

The  counsel  for  the  defense  declined  asking  Mrs.  Butler  any 
question,  remarking  that  they  had  no  desire  to  inflict  suffering 
upon  her  by  calling  her  mind  to  the  details  of  the  unhappy  occur- 
rence. 

Dr.  D.  D.  Thomson,  sworn — Reside  in  Louisville,  and  practice 
my  profession  there;  shortly  after  10  o'clock,  on  the  morning  of  the 
second  of  November,  was  called  to  Col.  Harney's  residence  to  see 
Prof.  Butler;  he  was  deathly  pale  and  faint;  several  boys  were 
holding  him  up,  and  I  had  them  place  him  in  a  recumbent  position; 
he  asked  me  if  he  was  not  a  dead  man;  I  told  him  I  hoped  not,  but 
could  not  tell  until  I  had  examined  the  wound;  we  took  off  his  coat 
and  tore  open  his  shirt;  the  wound  was  on  the  left  side,  about  one 
and  one-half  inches  obliquely  above  the  left  nipple,  it  was  much 
burned  with  powder  around  it;  I  attempted  to  probe  it,  but  failed 
to  do  so,  being  unable  to  follow  the  wound. 

Dr.  L.  P.  Yandell,  sworn — Am  a  practising  physician  in  Louis- 
ville, was  called  in  to  see  Prof.  Butler,  on  the  second  of  November, 
shortly  after  he  was  shot;  he  seemed  to  be  mortally  wounded;  Dr. 
Thomson  was  attempting  to  probe  the  wound,  and  when  Dr.  Cald- 
well  came  in,  he  attempted  to  assist;  the  probes  did  not  seem  to 
penetrate  the  chest,  and  we  then  felt  and  expressed  a  hope  that  the 
wound  might  not  be  fatal;  shortly  after,  however,  I  heard  the 
blood  issue  from  it  in  a  manner  that  convinced  me  that  the  ball  had 
entered  the  cavity;  when  I  asked  the  position  he  was  in  as  he 
received  the  wound,  he  replied  that  they  were  clinched;  that  Ward 

called  him  a  d d  liar  or  scoundrel,  and  raised  his  hand;  that  he 

(Butler)  then  struck  Ward — they  clinched,  and  was  immediately 
shot;  the  ball  passed  through  a  part  of  the  left  lung,  where  the  ves- 
sels are  large;  it  caused  his  death. 

Dr. Muguet,  sworn — Reside  in  Louisville;  was  with  Prof. 

Butler,  after  he  was  shot,  on  the  second  of  November;  went  to  see 
him  about  half -past  one  o'clock,  and  remained  a  short  time;  went 
again  at  half-past  seven,  and  remained  until  his  death;  was  present 
at  the  post  mortem  examination;  was  well  acquainted  with  Prof. 
Butler;  his  right  hand  was  always  disabled;  he  could  not  open  or 
close  the  fingers  of  it. 


16  MODERN  JURY  TRIALS. 

J.  J.  Gillmore,  sworn — Reside  in  Louisville;  am  a  gunsmith;  on 
the  morning  of  the  second  of  November  last,  Matt.  F.  Ward  came 
into  our  store  about  nine  o'clock;  he  asked  to  look  at  a  pistol;  he 
took  it,  examined  it,  asked  the  price,  and  told  me  if  I  would  load 
it  he  would  take  it;  I  did  so;  he  then  hesitated  a  moment,  asked 
the  price  of  the  pair;  I  told  him,  and  he  said  if  I  would  load  the 
other  he  would  take  the  pair;  I  loaded  the  other,  and  he  took  them; 
he  inquired  for  small  pocket  pistols;  the  pair  I  sold  him  were  small, 
self-cocking  ones;  this  pistol  is  one  of  the  same  kind;  they  are  good 
pistols;  suppose  they  would  shoot  through  an  inch  plank,  two  feet 
from  the  muzzle;  I  loaded  each  of  them  with  powder  and  ball,  and 
put  caps  on  them;  they  were  fully  prepared  for  use;  did  not  observe 
whether  he  put  them  in  his  pocket;  do  not  recollect  that  he  said  he 
wanted  pistols  that  were  certain,  or  any  thing  of  the  kind;  there 
was  some  conversation  that  I  do  not  remember. 

Mr.  CRITTENDEN  (for  the  defense)  here  stated  that  he  desired  to 
introduce  Mrs.  R.  J.  Ward,  to  prove  a  single  fact  as  explanatory 
of  the  necessity  of  this  defendant  arming  himself,  if  the  court 
deemed  it  admissible.  This  fact  was,  that  some  months  prior  to 
the  occurrence  of  the  principal  fact  they  were  now  investigating, 
Mr.  Sturges,  the  assistant  teacher  of  Prof.  Butler,  had  become  so 
much  embittered  against  this  defendant — 

Mr.  ALLKN  asked  the  court  that,  in  speaking  upon  these  points, 
the  counsel  might  be  confined  strictly  to  the  legal  questions,  and 
not  allowed  to  argue  the  case  itself. 

Mr.  HELM — I  am  very  thankful  to  the  prosecutor  for  any  instruc- 
tion he  may  give  me.  As  I  am  a  young  man,  I  stand  peculiarly  in 
need  of  it ! 

Mr.  ALLEN — Not  at  all,  sir;  but  I  am  well  aware  that  we  are 
swivels  here,  fighting  against  twenty-four  pounders,  and  I  am 
desirous  that  they  may  be  confined  as  much  as  possible. 

Mr.  HELM — Some  of  your  swivels  have  been  brought  from  so 
great  a  distance  that  I  fear  they  will  hardly  repay  first  cost. 

Mr.  CARPENTER — Should  that  be  the  case,  it  will  be  our  misfor- 
tune, not  our  fault,  Governor  Helm! 

THE  COURT — I  trust  the  case  may  not  be  impeded  by  such 
remarks.  They  are  quite  unnecessary. 

Mr.  HELM — I  am  aware  of  it,  but  when  the  gentlemen  talk 
about  swivels  and  cannon,  I  think  we  have  a  right  to  retort. 

Mr.  MARSHALL — Well,  this  seems  to  be  grape  shot!  (General 
laughter.) 

The  defense  now  stated  that  they  desired  to  introduce  as  a  wit- 
ness, Robert  J.  Ward,  jr. 


MATT.  WARD  CASE.  17 

The  prosecution  objected,  on  the  grounds  that  the  proposed 
witness  was  jointly  indicted  as  a  principal,  with  the  defendant,  in 
this  case. 

Mr.  GIBSON  cited  various  authorities  in  defense  of  the  position. 

Mr.  CRITTENDEN  replied  at  length,  contending  that  the  testimony 
would  be  competent,  and  reading  from  a  large  number  of  authori- 
ties, on  which  he  based  his  argument. 

Mr.  GIBSON  replied,  after  which 

THE  COURT  ruled  the  testimony  admissible,  having  first  reviewed 
the  arguments  offered  on  both  sides.  It  seemed  necessary  to  a  fair 
investigation  of  this  case,  that  the  witness  should  be  admitted,  hie. 
credibility  being  a  matter  of  fact  for  the  jury  to  decide. 

Robert  J.  Ward,  a  brother  and  co-defendant,  was  sworn,  and 
gave  the  full  details  of  the  affray. 

Then  followed  evidence  on  the  custom  to  carry  arms,  as  to  which 

WITNESS  said,  I  do  not  know. 

Mr.  WOLFE — Are  you  not  armed  now,  sir  ?  Did  you  not  arm 
yourself  before  you  left  Louisville  ? 

WITNESS — I  shall  decline  to  answer  unless  I  am  directed  to  do  so 
by  the  court. 

The  COURT — The  witness  is  not  compelled  to  answer  the  question 
unless  he  sees  fit. 

Direct  resumed — In  our  efforts  to  probe,  did  not  follow  the  ball 
further  than  just  beneath  the  skin;  was  with  Butler,  with  the  excep- 
tion of  two  intervals,  until  he  died. 

To  Mr.  Wolfe — Prof.  Butler  remarked,  during  his  account  of  the 
matter,  "I  did  not  see  who  shot  me." 

Mr.  WOLFE — You  are  a  member  of  the  Presbyterian  Church,  I 
believe,  Dr.  Thomson  ? 

WITNESS — I  am ;  have  been  for  ten  years. 

Mr.  WOLFE — Are  you  not  a  teacher  in  the  Sabbath  school? 

WITNESS — I  am,  sir. 

Mr.  WOLFE — Is  it  usual  for  members  of  the  church  to  carry 
arms? 

WITNESS — I  do  not  know;  am  not  aware  of  any  regulation  in  the 
church  in  regard  to  it. 

Mr.  WOLFE — What  have  you  done  with  those  pistols  you  had  on 
your  person  yesterday  ? 

The  COURT — You  are  at  liberty  to  answer  the  question  or  not,  as 
you  please. 

WITNESS — I  decline  answering  unless  I  am  under  legal  obligation 
to  do  BO. 

s 


18  MODERN  JURY  TRIAIA 

A  specimen  of  character  evidence: 

Dr.  James  C.  Johnston — Have  lived  in  Louisville  about  sixty- 
five  years;  have  known  defendant  ever  since  he  was  a  boy;  he  has 
always  been  very  remarkable  for  his  amiability  of  temper  and 
courteous  manners  to  every  one;  his  health  has  been  very  precari- 
ous for  many  years;  his  frame  is  extremely  delicate. 

Mrs.  Judge  Oldham,  sworn — Reside  about  three  miles  from 
Louisville;  have  known  defendant  for  upwards  of  twenty  years;  his 
character  for  peacefulness  and  amiability,  both  as  boy  and  man, 
has  been  unexceptionable  and  excellent. 

Mrs.  Major  Gfwinn,  sworn — Have  known  defendant  intimately 
for  twenty-two  or  twenty-three  years;  he  has  always  been  a  kind 
and  affectionate  son  and  brother,  and  borne  an  excellent  character 
for  gentleness  and  peacefulness. 

George  D.  Prentice,  sworn — Have  lived  in  the  same  city  with 
Mr.  Ward  since  his  early  childhood;  have  always  known  him  well 
from  general  reputation,  and  for  a  few  years  past  by  intimate  per- 
sonal acquaintance;  have  found  him  as  mild,  quiet  and  amiable  a 
gentleman  as  I  have  ever  known;  he  has  been  an  invalid  for  many 
years,  and  often  unable  to  go  into  the  streets;  have  believed  hirr  to 
be  a  gentleman  of  spirit — one  who  would  be  prompt  to  resent  an 
insult,  but  remarkably  quiet  in  his  disposition;  on  account  of  his 
attention  to  letters,  his  character  has  been  more  generally  known 
and  discussed  than  that  of  most  young  men  of  his  age;  his  letters 
were  originally  published  in  my  own  paper,  the  Louisville  Journal, 
and  my  connection  with  him  has  been  frequent  and  intimate;  never 
heard  but  one  opinion  expressed  in  regard  to  his  disposition;  he  was 
very  feeble  shortly  previous  to  this  occurrence,  in  November;  he 
then  walked  with  crutches. 

[Other  evidence  on  the  killing,  death  and  character  would  be 
cumulative,  and  is  omitted.  It  would  not  change  the  tenor  of  the 
story. 

A  very  little  reflection  on  the  order  of  proof  will  enable  a  student 
to  follow  the  steps  in  a  murder  trial,  from  commencement  to  end, 
and  retain  them  in  memory.] 

Mr.  Carpenter  spoke  eight  hours  to  the  jury,  for  the  State,  in 
most  excellent  language,  and  found  its  response  in  the  audience, 
who  studied  the  defendant  carefully  and  waited  with  breathless 
anxiety  for  the  stirring  words  and  thrilling  sentences  of  Tom  Mar- 
shall, the  great  actor-advocate  of  the  South. 


MATT.  WARD  CASE.  19 

Here  began  an  array  of  flowery  passages  and  brilliant  replies 
rarely  equalled. 

[Tom  Marshall  was  born  1801  and  died  in  1865;  son  of  Dr.  Mar- 
shall; the  nephew  of  Chief  Justice  Marshall,  a  Southern  orator  of 
great  renown;  a  relative  on  his  mother's  side  of  the  Prestons, 
Blairs,  Browns  and  Breckenridges,  the  oldest  Kentucky  and  Vir- 
ginia families.  He  was  over  six  feet  in  height,  strong  and  grace- 
ful with  all  the  graces  of  an  orator,  wit,  humor,  rhetoric  and  elo- 
quence, and  for  thirty  years  the  most  conspicuous  advocate  in  Ken- 
tucky. In  politics  erratic;  in  habits  inclined  to  intemperance;  with 
a  voice  clear  and  flexible;  a  manner  indescribable,  at  times  grave, 
severe,  chaste,  and  always  original  and  effective.  He  could  move 
or  convulse  an  audience  at  will.  He  was  a  great  master  of  lan- 
guage, and  in  early  life  was  an  industrious  student.  He  mastered 
his  profession  and  understood  human  nature  and  the  effect  of  evi- 
dence and  argument.  No  report  of  his  speeches  give  his  incom- 
parable manner  of  reaching  a  jury.  He  was  a  genius  born  to  the 
law. 

"  They  talk  of  my  astonishing  bursts  of  eloquence  (he  said),  and 
doubtless  imagine  that  it  is  my  genius  bubbling  over.  It  is  nothing 
of  the  sort.  I'll  tell  you  how  I  do  it.  I  select  a  subject  and  study  it 
from  the  ground  up.  When  I  have  mastered  it  fully  I  write  a  speech 
on  it.  Then  I  take  a  walk  and  come  back  and  revise  and  correct. 
In  a  few  days  I  subject  it  to  another  pruning  and  then  recopy  it. 
Next  I  add  the  finishing  touches,  round  it  off  with  graceful  periods 
and  commit  it  to  memory.  Then  I  speak  it  in  the  fields,  in  my 
father's  lawn  and  before  my  mirror,  until  gesture  and  delivery  are 
perfect.  It  sometimes  takes  me  six  weeks  or  two  months  to  get 
up  a  speech.  When  I  have  one  prepared  I  come  to  town,  am 
called  on  for  a  speech  and  am  permitted  to  select  my  own  subject, 
It  astonishes  the  people,  as  I  intended  it  should,  and  they  go  away 
marveling  at  my  amazing  power  of  oratory.  They  call  it  genius> 
but  it  represents  the  hardest  kind  of  work."] 

MR.  MARSHALL  said,  "Gentlemen  :  In  appealing  to  you,  as  the 
representatives  of  a  merciful  God,  it  appeared  to  me  that  it 
would  have  been  quite  enough  for  the  gentlemen  to  consign 
the  prisoner  to  an  early  and  disgraceful  grave  in  the  midst 
of  all  his  promise  and  all  his  hopes,  without  intruding  such 
a  rhetorical  display  upon  him.  It  appeared  to  me,  that  after 
recommending  him  to  such  a  grave,  or,  in  case  he  should  escape  it, 
to  the  whips  and  stings  of  conscience  on  all  occasions  and  in  all 


20  MODERN  JURY  TRIALS. 

climes,  and  to  every  horror  that  a  distorted  imagination  has  been 
able  to  depict,  we  might  at  least  have  been  left  to  our  fate,  and 
spared  the  infliction  of  such  a  speech  and  such  an  appeal.  And  to 
crown  the  whole,  you  are  gravely  exhorted,  out  of  simple  mercy, 
to  rescue  us  from  the  horrible  phantoms  that  have  been  conjured 
up,  by  handing  us  over  to  the  hangman! 

******* 

"  Attention  has  been  directed  to  the  past  life  of  the  accused,  and 
this  traveled  young  gentleman  is  graciously  informed  that  he  may 
commence  his  travels  over  again.  But  the  permission  is  coupled 
with  the  assurance  that  wherever  he  may  go — whether  he  shall 
climb  the  rugged  Alps  and  wander  in  the  regions  of  Polar  cold,  or 
roam  through  the  sunny  climes  of  Italy  and  France,  still  every 
opening  flower  shall  remind  him  of  the  flowers  he  has  left  blighted 
at  home.  Should  he  seek  the  blue  ocean,  we  are  told  that  each 
white  cap  will  remind  him  of  the  shroud  of  his  victim,  and  that  in 
the  boom  of  every  surge,  he  shall  hear  the  rattle  of  the  death  shot." 

Here  follows  a  scathing  review  of  the  testimony  throughout,  and 
a  running  and  witty  comment  on  salient  facts,  with:  "  What  Ken- 
tuckian  will  find  him  guilty  who  resented  a  gross  insult  to  his 
brother  before  a  class  of  his  peers  ?  Would  a  true  brother  have 
done  less  ?  It  is  not  my  duty  to  stir  rudely  the  ashes  of  the 
deceased,  but  I  put  it  in  all  candor,  what  ought  he  to  have  done  f  " 

And  so  on  in  that  daring,  defiant,  yet  chivalrous  good  humor, 
that  he  swept  the  audience  with  him  like  leaves  in  the  wind.  Com- 
ment had  been  made  on  witness  Barlow  as  a  carpenter,  and  Tom 
Marshall  said,  "  why,  I  always  consider  one  carpenter  as  good  as 
another — one  brought  away  off  from  Campbell  County  to  build  a 
gallows  to  hang  the  prisoner  on,  the  other  to  testify  in  his  behalf!" 
"  He  had  the  right,  and  exercised  that  right  of  self-defense  with 
which  Nature  has  provided  him.  But  what  does  this  right 
mean,  and  how  far  does  it  extend  ?  It  confers  upon  me  the 
privilege  of  beating  off  any  injury  or  infringement  upon  those 
inherent  rights  with  which  God  and  Nature  have  provided 
me.  It  gives  me  the  right  to  exercise  any  means,  to  use  any 
amount  of  force  that  may  be  necessary  to  repel  such  attacks. 
No  man  has  a  right  to  take  my  life;  I  may  defend  it  and  preserve 
it  at  any  cost.  But  this  is  not  all;  a  man's  rights  are  not  confined 
merely  to  the  preservation  of  his  life.  He  has  others,  many  others, 
guaranteed  by  nature,  that  are  nearer  and  dearer,  and  which  it  is 
his  privilege  and  his  duty  to  protect.  Without  these,  life  itself 
could  have  no  charms;  and  had  I  no  other  right  than  the  simple 


MATT.  WARD  CASE.  21 

one  of  existence,  I  would  raise  my  own  wild  hand  and  throw  back 
my  life  in  the  face  of  Heaven,  as  a  gift  unworthy  of  possession  ! 

I  maintain  that  I  have  as  much  right  to  defend  my  personal  lib- 
erty as  my  life;  but  the  force  to  be  used  is  only  that  necessary  to 
repel  the  attack,  and  to  prevent  injury.  Were  this  defendant  to 
attack  me,  and  attempt  to  chastise  me,  I  would  have  no  right  to 
take  his  life,  because  he  is  an  invalid,  and  so  far  inferior  to  me  in 
physical  strength,  that  I  have  no  reason  to  apprehend  any  serious 
injury.  But  with  a  man  of  more  powerful  frame  than  myself,  the 
case  would  be  different.  He  has  no  right  to  attack  me;  I  have  a 
right  to  defend  myself,  and  I  may  use  just  the  amount  of  force 
necessary  to  do  so.  If  I  choose  I  may  strike  him  with  my  fist. 
That  would  show  a  great  deal  of  game;  but  if  he  were  stronger 
than  I,  it  would  certainly  tend  to  exasperate  him,  and  render  my 
chastisement  six  times  as  severe  as  it  would  otherwise  have  been. 
Perchance  I  may  be  able  to  seize  a  bludgeon,  with  which  I  can  fell 
him  to  the  earth,  and  thus  protect  myself.  But  if  no  such  means 
are  at  hand,  will  any  man,  will  any  Kentuckian,  tell  me  that  I  must 
stand  and  be  beaten  like  a  dog,  at  his  discretion  ?  Certainly  not. 
I  may  repel  him  and  defend  myself  in  any  way  I  can,  and  if  noth- 
ing else  will  prove  effectual,  I  have  a  perfect  right  to  cut  his  throat 
from  ear  to  ear.  I  may  use  any  amount  of  force  whatever  that  is 
necessary;  and  this,  as  I  understand  it,  is  the  law  on  the  subject, 
as  construed,  applied  and  executed,  throughout  the  land.  I  ask 
you  to  look  at  the  facts  in  this  case,  and  apply  the  law  to  them. 

Should  he  die  for  this  ?  Does  this  act  make  it  necessary  for  that 
young  prisoner  to  be  stricken  from  the  roll  of  living  men  !  Does 
it  render  him  unfit  to  live,  and  a  dangerous  member  of  human 
society  ? 

But  if  you  think  to  mitigate  his  punishment,  will  you  immure 
him  within  the  walls  of  a  penitentiary  ?  Will  you  cut  those  flow- 
ing locks — will  you  shave  that  classic  head — will  you  snatch  him 
from  the  bosom  of  his  loving  family — tear  him  from  the  arms  of 
his  girl- wife  and  rudely  sunder  every  tie  that  makes  life  dear  ? 
Will  you  do  this  and  call  it  mercy  ? 

As  the  representatives  of  a  just  and  merciful  God,  if  you  feel  it 
your  solemn  duty  to  punish  him,  O,  let  him  die!  Talk  not  of 
mercy,  while  you  inflict  upon  him  a  curse  for  which  there  can  be  no 
human  parallel,  a  punishment  to  which  death  is  nothing  in  com- 
parison. No,  no!  if  you  talk  of  mercy,  show  that  mercy  the  prose- 
cutor spoke  of  this  morning — the  mercy  of  the  grave.  O,  give  him 
liberty  or  give  him  death !  But  the  prosecutor  seemed  greatly 
afraid  of  mercy,  and  again  and  again  he  enjoined  it  upon  you  to 


22  MODERN  JURY  TRIALS. 

show  none.  He  thought  that  perhaps  the  ALMIGHTY  might  possess 
some,  but  of  even  that  he  seemed  to  be  doubtful,  and  he  charged 
you  to  beware  that  not  a  single  feather  should  fall  from  the  wings 
of  the  dove,  to  contaminate  this  jury  box  by  its  presence.  * 

For  the  sad  event  that  has  occurred,  we  feel  regret — deep,  last- 
ing, bitter.  If  that  day's  act  could  be  recalled,  no  man  on  earth 
would  do  so  much  to  reverse  it  as  the  prisoner  at  the  bar.  We 
sympathize  deeply  with  the  afflicted  family,  and  lament  the  occur- 
rence that  bereaved  them.  But  we  have  felt,  and  we  feel  now,  no 
such  stings  of  conscience  as  have  been  described  here.  We  have 
thrown  ourselves  for  trial  upon  GOD,  our  Creator,  and  upon  you, 
our  country;  and  we  have  said  "  Not  guilty,"  to  this  indictment, 
because  we  are  not  guilty  of  the  crime  it  charges.  The  awful  con- 
sequences of  a  verdict,  such  as  it  is  in  your  power  to  render,  appal 
us  with  horror — but  mingled  with  that  horror  there  is  no  remorse — 
there  are  no  stings  of  conscience.  Not  guilty,  we  say,  living;  not 
guilty,  we  say,  dying,  and  not  guilty,  we  will  ever  say  ! 

You  have  heard  the  character  of  this  defendant  proved — and 
such  a  character!  Did  you  ever  know  it  surpassed  ?  Could  there 
be  one  more  mild,  more  gentle,  more  peaceful,  and  more  universally 
beloved  ?  Men  of  all  professions  and  occupations — of  every  posi- 
tion in  life — have  testified  to  the  fact  that  this  was  true  alike  of  the 
boy  and  the  man. 

As  he  grew  to  manhood,  perhaps  from  too  close  attention  to 
study,  his  health  failed,  and  he  went  abroad  to  regain  it.  And 
whatever  your  decision  shall  be,  he  has  left  behind  a  monument 
that  will  ever  place  his  name  high  among  men  of  intelligence  and 
of  letters.  I  allude  to  this  volume;  I  suppose  I  may  not  read  from 
it,  for  the  gentlemen  might  object  that  it  had  not  been  offered  in 
evidence;  but  it  shows  how  my  unhappy  client  has  spent  his  time. 
And  I  owe  him  much  for  the  gratification  I  have  experienced,  as  I 
followed  him  in  his  wanderings,  on  hallowed  and  on  classic  ground. 
I  have  been  with  him  down  the  beautiful  Rhine,  within  the  ancient 
walls  of  Aix-La-Chapelle,  up  the  sluggish  Nile,  and  on  Mount 
Sinai's  rugged  brow;  and,  O,  if  I  were  permitted  to  read  to  you  the 
thoughts  and  feelings  that  there  swelled  his  breast,  you  would  real- 
ize what  a  heart  you  are  entreated  to  crush — what  a  light  of  geniua 
you  are  asked  to  extinguish  forever  ! 

It  were  pitiful  that  he  should  die  so  young — now  in  the  full 
flush  of  his  early  manhood — one  so  loved  in  the  social  circle,  one 
looked  upon  so  hopefully  by  the  church,  one  who  has  proved  him- 
self so  glorious  a  genius  and  so  fit  to  lead  the  young  men  of 
America — it  were  a  pity  that  he  should  die,  even  by  the  unrelent 


MATT.  WARD  CASE.  23 

ing  hand  of  disease,  and  when  surrounded  by  all  that  he  loves  on 
earth.  But  to  be  cut  off  thus — in  such  a  cause — to  be  sacrificed  in 
response  to  such  a  wild,  insatiate  cry  for  blood  as  has  been 
raised  by  this  prosecution — O,  it  were  pitiful,  it  were  marvellously 
pitiful! 

I  have  pleaded  this  case  only  by  the  law  and  the  facts;  but  were 
I  compelled  to  ask  mercy,  was  there  ever  a  case  in  which  it  could 
be  shown  with  more  propriety  ?  Yet  I  do  not  ask  you  to  pardon — 
there  is  no  occasion  for  that.  I  ask  you  to  do  your  duty,  to  exam- 
ine the  case  carefully,  to  see  if  you  discover  the  elements  of  mur- 
der there,  and  then  tell  us  if  you  can  say  that  this  young  man  shall 
die — shall  die  a  felon's  death  !  I  know  you  cannot. 

I  have  spoken  long,  gentlemen,  and  perhaps  have  wearied  you.  I 
need  not  have  consumed  so  much  time,  for  I  feel  confident  that 
the  cause  of  my  client  is  safe  in  your  hands.  I  know  that  others 
are  to  follow  me,  the  latchet  of  whose  shoes  I  am  not  worthy  to 
unloose;  and  if  I  have  left  any  chasm  in  the  argument  of  this  case, 
I  am  sure  they  will  fill  it  up.  I  thank  you,  gentlemen,  and  take 
my  leave. 

Gov.  HELM  followed,  in  an  able  and  logical  speech  for  the 
defense,  already  doubly  strong,  very  largely  a  legal  argument. 
The  concluding  words  were: 

"  The  case,  gentlemen,  is  with  you.  I  have  endeavored  to  con- 
sider it  in  all  its  bearings,  so  far  as  my  feeble  condition  would  permit. 
I  have  only  sought  to  explain  fairly,  both  the  law  and  the  facts. 
And  now,  what  are  you  called  upon  to  do  ?  Will  you  consign  this 
prisoner — this  unfortunate,  but  noble  specimen  of  young  manhood, 
for  the  fatal  deed  of  a  single  hour,  to  a  dark  and  dishonorable 
grave  ?  Or,  if  not,  will  you  inflict  upon  him  that  other,  but  equally 
terrible  punishment  ?  Have  you  the  heart  as  he  now  stands,  that 
fearful,  insidious  disease  preying  upon  him,  with  one  foot  on  earth, 
and  the  other  trembling  on  the  brink  of  eternity,  to  make  him  an 
outcast  from  the  world,  and  confine  him  in  a  felon's  prison  ? 

"  It  would  be  only  to  lay  him  on  a  couch  of  suffering  and  disgrace 
from  which  he  would  never  rise  again.  It  would  be  only  to  banish 
him,  during  the  short  remnant  of  his  life,  from  that  kind  mother, 
who,  with  anxious  care  and  fondness,  has  ever  watched  over  him, 
the  pride  of  her  heart,  and  the  pledge  of  her  first  love;  from  that 
gentle,  devoted  young  wife,  who  is  bound  to  him  by  ties  no  less 
mysterious  and  vital  than  those  which  unite  the  Siamese  twins, 
and  the  parting  of  which  must  lay  them  side  by  side,  in  one  early 
grave. 


24  MODERN  JURY  TRIALS. 

"  In  the  name  of  that  wife,  in  the  name  of  that  mother,  in  the  name 
of  simple  justice  and  of  common  humanity,  I  ask  you  to  give  him 
back  to  life  ! " 

The  speech  of  NATHANIEL  WOLFE,  for  the  defense,  abounds  in 
apt  and  original  matter,  caustic  and  severe  on  opposite  counsel, 
stinging  and  sharp  in  replies,  and  brilliant  in  original  wit  and 
happy  illustrations. 

He  denied  the  right  of  a  teacher  to  whip  a  child,  and  said: 

"I  endeavor  to  teach  my  children  to  love  one  another,  and  when 
they  err,  I  take  them  apart  and  kindly  tftll  them  of  their  fault — do  not 
attempt  to  disgrace  and  degrade  them  in  the  presence  of  the  fam- 
ily. Thus,  I  hope,  they  learn  to  regard  their  father  as  a  friend  in 
whom  they  may  confide — an  adviser  on  whom  they  can  rely,  and 
his  house  a  refuge  and  a  home,  in  all  their  childish  sorrows. 

"  Even  if  we  go  back  to  Greece — that  glorious  old  republic,  whose 
light  will  continue  to  shine  through  the  historic  page,  to  the  latest 
ages  of  time — we  shall  find  that  this  brutal  practice,  this  relic  of  bar- 
barianism,  was  ignored  in  their  schools.  Chastisement  was  then 
believed,  as  it  really  is,  the  father's  prerogative.  As  so  many  inci- 
dents on  this  subject  have  been  related  by  the  gentlemen,  perhaps 
I  may  be  permitted  to  allude  to  one.  Plutarch,  in  his  celebrated 
'  Lives  of  Distinguished  Men,'  tells  us  of  one  of  his  tutors  named 
Amoneus,  who,  when  one  of  the  boys  under  his  charge  had  done 
something  wrong,  took  his  own  son  and  whipped  him  in  their  pres- 
ence, to  reprove  them,  and  to  show  what  he  would  have  done,  had 
the  laws  of  his  country  allowed  it. 

"The  brave  seamen  of  our  navy  were  once  scourged  for  every 
trivial  offense;  but  Congress  has  abolished  the  barbarous  practice, 
as  debasing  and  degrading  to  the  character  of  a  free  man.  In  the 
British  navy  the  same  is  true;  and  throughout  this  whole  country 
there  is  a  settled  sentiment  against  this  punishment." 

He  cited  the  following  cases: 

In  the  Jefferson  Circuit,  a  few  years  ago,  Coon  was  tried  for  the 
murder  of  Shaeffer.  The  latter  had  insulted  Coon's  wife,  and  Coon 
went  to  obtain  redress.  He  told  Shaeffer  of  the  insult,  whereupon 
he  raised  his  arm,  as  Coon  thought,  to  strike  him,  though  it  after- 
wards appeared  that  his  hand  only  contained  a  small  piece  of  wood. 
Coon  then  plunged  a  file  into  him,  and  it  immediately  proved  fatal, 
yet  the  jury  sustained  his  conduct. 

The  case  of  Owen,  charged  with  the  murder  of  Haire,  caused  so 
much  excitement  in  Louisville,  a  few  years  ago,  that  it  was  neces- 


MATT.  WARD  CASE.  25 

•ary  to  obtain  a  change  of  venue  to  secure  a  fair  trial.  The  parties 
slept  in  the  same  bed;  in  the  morning  Haire  missed  some  money, 
and  accused  Owen  of  taking  it.  Owen  asked  an  explanation;  it  was 
refused,  and  he  prepared  himself  with  a  pistol  before  they  met 
again.  Haire,  I  believe,  also  had  a  pistol,  but  Owen  shot  him;  and 
was  acquitted  on  the  ground  that  he  had  a  right  to  obtain  redress 
for  the  injury  done  his  character. 

The  gentleman  has  given  you  a  Scriptural  illustration,  comparing 
himself  to  David,  who,  as  he  tells  you,  went  out  to  fight  against  the 
Philistines,  armed  only  with  a  shepherd's  sling  and  seven  smooth 
stones.  Now  we,  I  presume,  according  to  his  comparison,  are  the 
Philistines;  but  the  gentleman  seem  to  be  rather  unfortunate  in 
his  Biblical  recollections.  He  must  remember  it  was  against  Goli- 
ath that  young  David  went;  and  that  it  was  Samson  who  fought 
with  the  Philistines,  slaying  three  thousand  of  them  in  one  day, 
and  that,  too,  with  the  jaw-bone  of  an  ass.  And  I  can  only  express 
a  devout  hope  that  I  am  not  to  meet  with  a  similar  melancholy 
fate,  and  be  ruthlessly  slaughtered  here,  by  the  same  dangerous 
weapon  !  (Prolonged  laughter.) 

Having  the  jury  at  his  will,  he  read  them  two  beautiful  passages: 

"  I  stand  upon  the  summit  of  Mount  Sinai.  What  endless  food 
for  memory  and  association  in  the  thought!  To  trace  the  course 
of  Moses  up  to  the  sacred  mountain — to  visit  the  scene  where  OUT 
Lord  deigned  to  hold  converse  with  his  servant — to  feel  yourself 
on  Mount  Sinai,  upon  which  rests  all  that  is  earliest  learned  in 
childhood,  and  most  dearly  prized  by  man,  is  worth  a  lifetime's 
weary  pilgrimage.  I  forgot  fatigue,  anxiety,  and  all  the  weariness 
of  the  desert.  I  could  only  remember  that  I  was  upon  Mount 
Sinai.  Go  there,  if  you  would  feel  as  your  never  felt  before.  Go 
read,  as  I  have  done,  the  decalogue  upon  the  very  spot  where 
Moses  received  it  from  the  hands  of  the  Almighty.  Enter  the  cleft 
in  the  rock  into  which  Moses  fled  as  the  glory  of  the  Lord  passed 
by.  Remember  that  fearfully  sublime  scene,  when  there  were 
thunderings  and  lightnings  and  a  thick  cloud  upon  the  mount; 
when  Moses  brought  forth  the  people  out  of  the  camp  to  meet  with 
God,  and  the  Lord  descended  upon  the  smoking  mountain  in  fire; 
when  the  voice  of  a  trumpet  sounded  long,  and  waxed  louder  and 
louder  as  Moses  spake,  and  God  answered  him  with  a  voice — and 
tell  me  if  the  memory  treasures  another  emotion  like  this. 

"  I  have  wandered  with  delight  over  the  battle-field  of  Wagram, 
where  Napoleon  brought  to  his  feet  the  most  powerful  monarch  of 


2«  MODERN  JURY  TRIALS. 

the  world.  Leipsic  had  a  melancholy  charm  for  me,  as  the  spot 
where  Fortune  united  with  allied  Europe  to  put  down  her  petted 
favorite.  I  felt  a  deep  interest  in  gazing  upon  the  plain  of  Water- 
loo, where  that  gigantic  power  expired,  which  had  toppled  kings 
from  their  thrones  and  made  emperors  tremble.  These,  thrillingly 
interesting  as  they  were,  are  but  scenes  in  the  destiny  of  a  man. 
Great  as  he  was,  he  was  but  mortal.  But  Mount  Sinai  is  hallowed 
by  the  presence  of  God  himself — it  is  the  first  scene  connected  with 
the  salvation  of  man  through  the  intervention  of  his  Maker." 

Permit  me,  gentlemen,  to  read  you,  in  conclusion,  an  extract  from 
a  letter  written  from  that  scene  of  the  deepest  interest  to  man  the 
world  has  ever  known — the  Mount  of  Calvary: 

"  A  man's  deep  emotions  on  visiting  the  church  of  the  Holy 
Sepulchre  are  chilled,  not  smothered,  by  the  glare  and  glitter  of  the 
tasteless  ornaments  and  images  that  load  the  hallowed  spots  within. 
I  turned  at  once  to  Calvary,  and  mounted  the  steps  where  our 
fainting  Saviour  toiled  up  the  rocky  hill,  when,  turning  to  the 
women  that  bewailed  and  lamented  him,  he  said,  in  mournful  for- 
getf ulness  of  his  own  sufferings,  '  Daughters  of  Jerusalem,  weep 
not  for  me,  but  weep  for  yourselves  and  for  your  children! '  I 
stood  upon  the  spot  where  our  Lord  was  nailed  to  the  cross — the 
rock  in  which  the  cross  was  planted  was  before  me;  and  amidst  the 
gloom  and  silence  of  the  dimly-lighted  chapel  I  could  almost 
imagine  the  fearful  scene  of  the  crucifixion,  when  'the  sun  was 
darkened,  and  the  veil  of  the  temple  rent  in  the  midst.'  I  could 
almost  see  the  two  malefactors  that  were  crucified  with  him,  'on 
either  side  one,  and  Jesus  in  the  midst.'  I  could  hear  the  hootings 
and  revilings  of  the  enraged  multitude,  and  that  beautiful  senti- 
ment of  forgiving  meekness — 'Father,  forgive  them;  they  know 
not  what  they  do.'  I  could  see  the  crowds  of  women  that  had  fol- 
lowed him  from  Galilee,  'beholding  afar  off,'  and  witness  the  fierce 
determination  of  the  soldiers.  I  could  hear  that  cry  of  mortal 
agony — '  My  God  !  my  God  !  why  hast  thou  forsaken  me  ? '  And 
all  was  over.  What  could  be  more  impressive  than  such  recollec- 
tions in  such  a  place  ? 

"My  heart  was  softened  even  to  weakness,  and  I  could  almost 
have  wept;  for  that  religious  fervor,  which  even  the  most  worldly 
may  feel  on  Calvary,  was  blended  in  my  heart  with  the  feeling  of 
earth  most  akin  to  heaven — a  son's  devotion  to  his  mother.  The 
Bible,  from  which  I  read  the  mournful  story  of  the  cross  and  pas- 
sion, was  her  parting  gift.  It  flooded  my  heart  with  hallowed 
associations — thoughts  of  her  and  of  heaven  were  blended  in  my 


MATT.  WARD  CASE.  27 

soul,  and  purified  each  other.  It  recalled  the  never-to-be-forgotten 
instruction  of  my  early  childhood,  when,  leaning  upon  her  lap,  I 
heard  from  her  loved  lips  explanations  of  the  holy  events  of  which 
I  now  read,  upon  the  very  spot  where  they  occurred.  It  recalled 
the  recollections  of  later  days,  when,  side  by  side,  we  sat  in  the  vil- 
lage church — the  exquisite  music  of  those  simple  hymns,  that  we 
sang  from  the  same  book,  seemed  again  to  swell  upon  my  ears,  and 
I  was  a  child  in  feeling  once  more.  And,  whatever  may  have  been 
my  course  since,  those  early  impressions  of  piety  have  never  been 
effaced,  and  the  religious  associations  connected  with  those  blissful 
days  of  innocence  I  now  found  had  not  died,  but  only  slumbered, 
and  but  required  a  sacred  spot  like  this  to  start  into  life,  linked 
with  a  mother's  holy  name." 

Gentlemen,  it  is  impossible  that  a  heart  like  that  of  the  prisoner, 
depicted  in  these  lines,  is  capable  of  entertaining  malice.  His  devo- 
tion to  his  fellow  men,  his  devotion  to  his  mother,  his  devotion  to 
his  GOD,  all,  all  forbid  the  idea  that  he  is  capable  of  entertaining 
malice  against  any  human  creature.  The  act  with  which  he  is 
charged  was  the  result  of  dire  necessity,  it  was  not  an  act  of  will- 
fulness. 

Gentlemen,  the  fate  of  my  client  will  soon  be  committed  to  your 
hands.  What  a  responsibility  will  then  rest  upon  you!  Life  or 
death  is  involved  in  the  issue!  What  inexpressible  joy  a  verdict  for 
life  will  bring  with  it!  This  beautiful  world  will  to  him,  as  well 
as  to  those  who  are  bound  to  him  by  such  tender  ties,  present 
scenes  of  happiness  and  gladness.  But  oh,  what  gloom,  what  sad- 
ness, what  misery  would  a  verdict  of  death  bring  with  it !  That 
young  and  beautiful  wife,  the  partner  of  his  former  joys,  the  par- 
ticipator of  his  woes,  to  know  that  her  husband  is  to  be  assigned 
to  an  ignominious  grave  !  That  mother,  whose  life  has  been  a  life 
of  devotion  to  him,  to  have  her  heart  riven  by  sorrow  that  can 
never  be  subdued — that  family  and  wide  and  extended  circle  of 
friends,  of  which  he  is  the  rose  and  pride,  to  be  crushed  down  for 
ever  ! — I  cannot  anticipate  such  a  result.  The  evidence  will  not 
warrant  such  a  verdict,  and  such  an  one  will  not,  can  not,  be  ren- 
dered by  you. 

The  achievements  of  this  young  man  in  the  field  of  literature  are 
part  and  parcel  of  the  greatness  of  Kentucky.  The  emanations  of 
his  mind  have  added  fresh  glory  to  the  history  of  our  State,  which 
the  patriotic  devotion  of  his  ancestry  had  already  rendered  so  illus- 
trious. 

I  leave  him  with  you.     I  have  done. 


28  MODERN  JURY  TRIALS. 

Here  followed  a  long  and  excellent  argument  of  Governor  Critten- 
den,  in  a  chaste  and  dignified  analysis  of  the  case  from  end  to  end. 
His  exordium  was  graphic  and  effective  on  the  right  of  trial  by 
jury,  the  solemnity  of  the  occasion,  and  impressive  on  the' leading 
circumstances.  He  was  convincing  in  his  logic,  clear  in  conclu- 
sions, and  powerful  in  his  appeals. 

[John  J.  Oittenden  was  born  in  1789,  and  died  in  1863.  He 
filled,  during  his  eventful  life,  the  positions  of  Congressman,  Gov- 
ernor, Attorney-General  of  the  United  States  under  Harrison  and 
Fillmore,  was  United  States  Senator^,  appointed  United  States 
Supreme  Justice  by  President  Adams,  a  soldier  in  the  war  of  1812; 
above  the  medium  height,  erect,  muscular,  dignified,  with  genial 
and  attractive  manners;  the  most  successful  advocate  in  Kentucky, 
a  fine  lawyer,  and  a  rare  judge  of  men;  of  superb  courage  and  tem- 
per and  the  highest  personal  honor.  His  art  was  persuasiveness. 
He  won  his  cases  by  his  candor,  character,  fairness  and  deferential 
obedience  to  the  rights  of  others.  He  spoke  as  a  gentleman  to  gen- 
tlemen, and  never  used  harsh  things  to  harrow  the  feelings  of  a 
jury.  He  understood  mankind.  He  was  clear.  He  aimed  to  be 
candid  and  to  be  comprehended.  He  could  bring  tears  to  his  own 
eyes  or  his  auditors',  but  they  were  heart-felt,  earnest  and  honest 
expressions  of  his  belief.  He  won  his  cases  fairly.] 

Here  is  a  passage  of  his  on  self-defense: 

But  where  a  man  in  sudden  affray  is  beaten  or  assaulted  in  such 
a  manner  as  to  peril  his  life,  or  place  him  in  danger  of  great  bodily 
harm,  when  there  is  no  other  way  of  escape,  he  has  a  right  to  kill 
his  adversary,  and  the  law  calls  it  justifiable  homicide — killing  in 
self-defense.  The  law  is  very  tender  of  human  life,  and,  therefore, 
homicide,  even  in  self-defense,  is  spoken  of  by  the  English  authori- 
ties as  ".excusable  rather  than  justifiable."  And  thus  the  definition 
of  it  given  by  Lord  Bacon  is,  "A  blamable  necessity."  Yet 
though  blamable,  it  is  a  necessity,  and  it  excuses  and  acquits  the 
party.  It  is  described  as  "that  whereby  in  a  sudden  broil,  or 
quarrel,  a  man  may  protect  himself  from  assaults  or  the  like,  by 
killing  the  one  who  assaults  him."  But  it  must  not  be  used  as  a 
cloak  for  a  revengeful  and  wicked  heart,  for  we  are  explicitly 
told  that  we  may  "  not  exercise  it,  but  in  cases  where  sudden  and 
violent  suffering  would  be  caused  by  waking  for  the  intervention 
of  the  law."  *  *  * 

After  an  exhaustive  speech  to  the  jury,  he  concludes: 


MATT.  WARD  CASE.  29 

In  examining  these  facts,  may  not  one  judge  of  them  more  kindly, 
and  hence  ascribe  better  motives  than  another?  The  consideration 
of  the  facts  and  the  causes  that  produced  them,  is  the  proper  place 
for  mercy  to  be  applied.  The  law  says  the  murderer  shall  be  pun- 
ished; but  it  is  your  province  to  ascertain  what  constitutes  the  mur- 
derer. 

You  have  a  solemn  duty  to  perform,  and  I  want  you  to  perform 
it.  I  want  you  to  perform  it  like  men — like  honest  men.  I  ask 
your  sober  judgment  on  the  case,  but  it  is  right  for  that  judgment 
to  be  tampered  with  mercy.  It  is  according  to  the  principles  of 
law,  one  of  whose  maxims  tells  you  "  it  were  better  for  one  hun- 
dred guilty  men  to  escape  than  for  an  innocent  one  to  be  punished." 
Is  not  here  your  commission  for  mercy  ?  It  is  alike  your  honest 
minds  and  your  warm  hearts  that  constitute  you  the  glorious  trib- 
unal you  are — that  make  this  jury  of  peers  one  of  the  noblest 
institutions  of  our  country  and  our  age.  But  the  gentlemen  would 
make  you  a  set  of  legal  logicians — calculators,  who  are  to  come  to 
your  conclusion  by  the  same  steps  a  shop-keeper  takes  to  ascertain  the 
quantity  of  coffee  he  has  sold  by  the  pound.  That  may  be  a  jury 
in  name,  but  it  is  in  nothing  else. 

But  I  wish  to  call  your  attention  to  another  fact  that  figures  in 
this  case.  Mr.  Carpenter,  with  more  adroitness  than  Mr.  Gibson, 
but  with  less  scrupulousness,  has  attempted  to  create  a  prejudice 
against  this  prisoner,  by  speaking  of  his  family  as  aristocratic — as 
believing  themselves  better  than  ordinary  mortals.  I  suppose  I 
feel  no  personal  offense  at  this,  for  I  have  always  belonged  to  that 
class  usually  called  *'  poor  men."  But,  in  this  country,  no  man  can 
be  above  a  freeman,  and  we  are  truthfully  told  that  "poor  and 
content  is  rich  enough."  *  *  * 

In  conclusion,  gentlemen,  I  beg  leave  to  call  your  attention  to  an 
important  consideration,  bearing  on  the  whole  case,  and  affording  a 
key,  I  think,  to  the  heart  of  this  young  man.  I  allude  to  his  gen- 
eral character  and  disposition  through  life.  I  need  not  recall  your 
attention  to  what  we  have  shown  it;  it  is  all  perfect  in  your  recol- 
lection. I  have  no  occasion  to  exaggerate;  he  has  shown,  in  the 
clearest  and  most  conclusive  manner,  a  character  of  which  you  or 
I,  or  any  man  living,  might  be  proud.  As  in  boyhood,  so  in  man- 
hood. His  riper  years  only  exhibited  to  the  world  the  amiable  and 
lovely  and  genial  traits  of  the  boy,  more  illustriously  developed  in 
the  man. 

I  am  one  of  those  who  believe  in  blood,  and  in  consistency  of 
character.  Show  me  a  man  that  for  twenty  or  thirty  years  hai 


30  MODERN  JURY  TRIALS. 

been  kind  and  honest  and  faithful  in  all  the  relations  of  life,  and  it 
will  require  a  great  deal  of  evidence  to  induce  me  to  believe  him 
guilty  in  any  instance  of  a  gross  and  outrageous  wrong.  You  have 
seen  the  character  of  this  man,  from  his  earliest  boyhood— so  kind 
so  gentle,  so  amiable — ever  the  same,  at  school  and  at  college,  in 
the  city  or  in  the  country,  among  friends  or  strangers,  at  home  or 
in  foreign  lands.  There  was  no  affected  superiority.  You  see 
how  many  mechanics  and  artisans  have  been  his  constant  associates 
and  friends.  With  health  impaired,  and  with  literary  habits — 
never  seen  in  drinking  saloons  or  gaming  houses — his  associations 
with  men  of  all  classes — he  has  ever  b^en  the  same  mild,  frank  and 
unoffending  gentleman,  respecting  the  rights  of  others  and  only 
maintaining  his  own.  This  is  the  man  you  are  called  upon  to  con- 
vict. His  act  was  an  unfortunate  one,  but  it  was  one  he  was  com- 
pelled to  do.  And  though  he  has  been  misrepresented  and  reviled 
and  wronged,  I  trust  it  will  be  your  happy  privilege,  by  a  verdict 
of  acquittal,  to  vindicate  his  character  in  the  eyes  of  all  good  men, 
and  restore  him  to  that  family  whose  peace,  happiness  and  honor 
are  at  stake  on  your  verdict.  Your  decision  must  cover  them  with 
sorrow  and  shame,  or  restore  them  to  happiness  that  shall  send  up 
to  Heaven,  on  your  behalf,  the  warmest  gratitude  of  full  and  over- 
flowing hearts. 

Gentlemen,  my  task  is  done;  the  decision  of  this  case — the  fate 
of  this  prisoner,  is  in  your  hands.  Guilty  or  innocent — life  or 
death — whether  the  captive  shall  joyfully  go  free,  or  be  consigned 
to  a  disgraceful  and  ignominious  death — all  depend  on  two  words 
from  you.  Is  there  any  thing  in  this  world  more  like  Omnipo- 
tence, more  like  the  power  of  the  ETEBNAL,  than  that  you  now 


Yes,  you  are  to  decide;  and  as  I  leave  the  case  with  you,  I 
implore  you  to  consider  it  well  and  mercifully  before  you  pro- 
nounce a  verdict  of  guilty — a  verdict  which  is  to  cut  asunder  all 
the  tender  cords  that  bind  heart  to  heart,  and  to  consign  this  young 
man,  in  the  flower  of  his  days  and  in  the  midst  of  his  hopes,  to 
shame  and  to  death.  Such  a  verdict  must  often  come  up  in  your 
recollections — must  live  forever  in  your  minds. 

And  in  after  days,  when  the  wild  voice  of  clamor  that  now  fills 
the  air,  is  hushed — when  memory  shall  review  this  busy  scene, 
should  her  accusing  voice  tell  you  you  have  dealt  hardly  with  a 
brother's  life — that  you  have  sent  him  to  death,  when  you  have  a 
doubt,  whether  it  is  not  your  duty  to  restore  him  to  life.  Ch,  what 
a  moment  that  must  be — how  like  a  cancer;  will  that  remem- 
brance prey  upon  your  hearts  ! 


MATT.  WARD  CASE.  31 

But  if,  on  the  other  hand,  having  rendered  a  contrary  verdict, 
you  feel  that  there  should  have  been  a  conviction,  that  sentiment 
will  be  easily  satisfied.  You  will  say:  "If  I  erred,  it  was  on  the 
side  of  mercy;  thank  GOD,  I  incurred  no  hazard  by  condemning  a 
man  I  thought  innocent!  "  How  different  the  memory  from  that 
which  may  come  in  any  calm  moment,  by  day  or  by  night,  knock- 
ing at  the  door  of  your  hearts,  and  reminding  you  that  in  a  case 
where  you  were  doubtful,  by  your  verdict,  you  sent  an  innocent 
man  to  disgrace  and  to  death. 

Oh,  gentlemen,  pronounce  no  such  verdict,  I  beseech  you,  but  on 
the  most  certain,  clear  and  solid  grounds.  If  you  err,  for  your  own 
sake,  as  well  as  his,  keep  on  the  side  of  humanity,  and  save  him 
from  so  dishonorable  a  fate — preserve  yourselves  from  so  bitter  a 
memory.  It  will  not  do  then  to  plead  to  your  consciences  any  sub- 
tle technicalities  and  nice  logic — such  cunning  of  the  mind  will 
never  satisfy  the  heart  of  an  honest  man.  The  case  must  be  one 
that  speaks  for  itself — that  requires  no  reasoning — that  without 
argument  appeals  to  the  understanding  and  strikes  conviction  into 
the  very  heart.  Unless  it  does  this,  you  abuse  yourselves — abuse 
your  consciences,  and  irrevocably  wrong  your  fellow  man,  by  pro- 
nouncing him  guilty.  It  is  life — it  is  blood  with  which  you  are  to 
deal;  and  beware  that  you  peril  not  your  own  peace! 

I  am  no  advocate,  gentlemen,  of  any  criminal  licentiousness — I 
desire  that  society  might  be  protected,  that  the  laws  of  my  country 
may  be  obeyed  or  enforced.  Any  other  state  of  things  I  should 
deplore;  but  I  have  examined  this  case,  I  think,  carefully  and 
calmly;  I  see  much  to  regret — much  that  I  wish  had  never  hap- 
pened— but  I  see  no  evil  intentions  and  motives — no  wicked 
malignity,  and,  therefore,  no  murder — no  felony. 

There  is  another  consideration  of  which  we  should  not  be  unmind- 
ful. We  are  all  conscious  of  the  infirmities  of  our  nature — we  are 
all  subject  to  them.  The  law  makes  an  allowance  for  such  infirmi- 
ties. The  AUTHOR  of  our  being  has  been  pleased  to  fashion  us  out 
of  great  and  mighty  elements,  which  make  us  but  a  little  lower  than 
the  angels;  but  he  has  mingled  in  our  composition  weakness  and 
passions.  Will  he  punish  us  for  frailties  which  nature  has  stamped 
upon  us,  or  for  their  necessary  results  ?  The  distinction  between 
these,  and  acts  that  proceed  from  a  wicked  and  malignant  heart,  is 
founded  on  eternal  justice;  and  in  the  words  of  the  Psalmist,  "He 
knoweth  our  frame — He  remembereth  that  we  are  dust."  Shall 
not  the  rule  He  has  established  be  good  enough  for  us  to  judge  by  ? 

Gentlemen,  the  case  is  closed.  Again  I  ask  you  to  consider  it 
well,  before  you  pronounce  a  verdict  which  shall  consign  this  pris- 


82  MODERN  JURY  TRIALS. 

oner  to  a  grave  of  ignominy  and  dishonor.  These  are  no  idle  wordi 
you  have  heard  so  often.  This  is  your  fellow  citizen — a  youth  of 
promise — the  rose  of  his  family — the  possessor  of  all  kind  and  vir- 
tuous and  manly  qualities.  It  is  the  blood  of  a  Kentuckfan  you 
are  called  upon  to  shed.  The  blood  that  flows  in  his  veins  has  come 
down  from  those  noble  pioneers  who  laid  the  foundations  for  the 
greatness  and  glory  of  our  State — it  is  the  blood  of  a  race  who 
have  never  spared  it,  when  demanded  by  their  country's  cause.  It 
is  his  fate  you  are  to  decide.  I  excite  no  poor,  unmanly  sympa- 
thy— I  appeal  to  no  low,  grovelling  spirit.  He  is  a  man — you 
are  men — and  I  only  want  that  sympathy  which  man  can  give  to 
man. 

I  will  not  detain  you  longer.  But  you  know,  and  it  is  right  you 
should,  the  terrible  suspense  in  which  some  of  these  hearts  must 
beat,  during  your  absence.  It  is  proper  for  you  to  consider  this, 
for  in  such  a  case  all  the  feelings  of  the  mind  and  heart  should  sit 
in  council  together.  Your  duty  is  yet  to  be  done;  perform  it  as 
you  are  ready  to  answer  for  it,  here  and  hereafter.  Perform  it 
calmly  and  dispassionately,  remembering  that  vengeance  can  give 
no  satisfaction  to  any  human  being.  But  if  you  exercise  it  in  this 
case,  it  will  spread  black  midnight  and  despair  over  many  aching 
hearts.  May  the  GOD  of  all  mercy  be  with  you  in  your  delibera- 
tions, assist  you  in  the  performance  of  your  duty,  and  teach  you  to 
judge  your  fellow-being  as  you  hope  to  be  judged  hereafter. 

Counsel  would  have  you  tell  the  Judge  of  the  quick  and  dead, 
when  you  stand  at  His  tribunal,  how  manfully  you  performed  your 
duty  by  sending  your  fellow  man  to  the  gallows  !  He  apprehends 
that  it  will  go  a  great  way  to  insure  your  acquittal  there  and  your 
entrance  to  the  regions  of  eternal  bliss,  if  you  are  able  to  state  that 
you  regarded  no  extenuating  plea — took  no  cognizance  of  the  pas- 
sions and  infirmities  of  our  common  nature — showed  no  mercy,  but 
sternly  pronounced  his  irrevocable  doom.  I  understand  that  it 
would  be  more  likely  to  send  you  in  a  contrary  direction.  I 
understand  that  a  lack  of  all  compassion  during  life  will  hardly  be 
a  recommendation  there.  I  understand  that  your  own  plea  will 
then  be  for  mercy;  none,  we  are  taught,  can  find  salvation  without 
it — none  can  be  saved  on  their  merits. 

I  have  somewhere  heard  or  read  a  story  from  one  of  those  tran- 
scendent German  writers,  which  tells  us  that  when  the  Almighty 
designed  to  create  man,  the  various  angels  of  his  attributes  cam* 
in  their  order  before  Him  and  spoke  of  his  purpose.  Truth  said: 
"  Create  him  not,  Father.  He  will  deny  the  right — deny  his  obli- 
gations to  Thee — and  deny  the  sacred  and  inviolate  truth — crea** 


MATT.  WARD  CASE.  33 

him  not."  Justice  said:  "Create  him  not,  Father.  He  will  fill 
the  world  with  injustice  and  wrong — he  will  desecrate  Thy  holy 
temple — do  deeds  of  violence  and  blood,  and  in  the  very  first  gene- 
ration he  will  wantonly  slay  his  brother — therefore,  create  him 
not."  But  gentle  Mercy  knelt  by  the  throne  and  whispered: 
"  Create  him,  Father.  I  will  be  with  him  in  all  his  wanderings — 
L  will  follow  his  wayward  steps — and  by  the  lessons  he  shall  learn 
from  the  experience  of  his  own  errors,  I  will  bring  him  back  to 
Thee."  "And  thus  teach,  O  man,  mercy  to  thy  fellow  man,  if 
thou  wouldst  bi-ing  him  back  to  thee  and  to  God." 

Mr.  Allen,  in  closing  for  the  People,  said: 

My  experience  in  criminal  trials,  perhaps,  has  been  considerably 
extended  for  a  man  of  my  age;  but  I  can  honestly  say  that  I  have 
never  seen  a  jury  in  any  case  manifest  such  patient  attention,  and 
exhibit  so  little  levity  and  carelessness  as  you  have  done.  It  indi- 
cates, to  my  mind,  that  you  appreciate  fully  the  position  both  of 
the  State  and  the  prisoner  at  the  bar;  and  that  while  you  receive 
so  readily  the  great  lights  which  have  shone  upon  the  case,  you 
will  not  reject  the  feeble  glimmer  of  the  one  that  is  yet  to  come, 
;.ml  which,  to  the  best  of  my  ability,  shall  only  be  thrown  upon 
i  !ie  law  and  the  testimony. 

It  is  the  duty  of  the  Commonwealth  to  take  upon  herself  the 
whole  burden  of  establishing  his  guilt,  and  it  is  your  duty,  gentle- 
men, to  construe  all  reasonable  doubts  in  his  favor.  You  have 
heard  this  principle  laid  down  in  the  vague  and  general  terms  of 
"  all  doubts;"  but  had  the  gentlemen  read  a  little  further  from  the 
old  Irish  authority  he  quoted,  in  the  very  next  sentence  he  would 
have  found  it  qualified  so  as  to  read  "  all  reasonable  doubts." 

It  is  impossible  that  juries  should  act  on  positive  certainties. 
All  information  you  can  obtain  in  regard  to  the  commission  of  any 
crime,  upon  which  you  are  to  decide,  must  be  from  those  who  wit- 
nessed it;  and  if  one  hundred  men  will  swear  positively  to  the 
same  fact,  you  must  even  then  have  some  doubt.  It  is  true,  you 
may  believe  it,  and  will  then  have  good  reason  to  do  so;  but  the 
very  term  belief  always  implies  doubt;  knowledge — that  no  doubt 
;>xists.  But  if,  in  this  case  or  in  any  other  case,  we  prove  the 
facts  claimed,  by  good  and  competent  witnesses,  it  is  your  duty  to 
convict,  even  though  some  doubt  may  exist,  for  it  cannot  come 
within  the  bounds  of  a  reasonable  doubt. 

Governor  Helm  set  out  with  the  proposition  that  a  man  with  as 
good  character  as  the  defendant,  cannot  have  had  the  wicked  and 
depraved  heart  that  is  necessary  to  the  commission  of  a  murder.  I 
3 


34  MODERN  JURY  TRIALS. 

wish  to  argue  this  case  with  fairness  and  candor;  and  I  admit  freety 
that  I  never  in  my  life  heard  a  better  character  proved,  and  I  never 
expect  to.  But  the  human  heart — who  can  know  it?  We  are 
told  by  the  volume  of  inspiration  that  it  is  "  deceitful  above  all 
things  and  desperately  wicked."  And  however  good  the  character 
of  this  accused  may  be,  that  fact  alone  cannot  overbalance  the  clear 
and  conclusive  testimony  of  the  case.  Character  is  only  to  be 
taken  into  consideration,  for  the  benefit  of  a  prisoner,  in  doubtful 
cases,  where  the  mind  of  the  juror  is  otherwise  left  in  uncertainty 
by  conflicting  or  imperfect  testimony. 

One  of  my  associates  has  alluded  to  the  great  case  of  Webster. 
When  on  trial  he  proved  a  good  character — nearly  as  good  as  that 
shown  by  the  prisoner  at  the  bar.  He  proved  it  by  ministers  of 
the  gospel  as  well  as  ministers  of  the  law — and  by  men  of  almost 
every  calling  and  position  in  life.  Yet  he  was  convicted;  and 
before  his  execution  he  fully  confessed,  not  only  that  he  committed 
the  murder  to  escape  the  payment  of  a  small  sum  of  money,  but 
that,  after  he  had  done  the  deed,  he  deliberately  cut  in  pieces  the 
body  of  his  victim,  and  burned  it! 

It  is  called  the  Code  of  Honor;  and  the  worst  feature  of  this 
bloody  code  is,  that  it  constitutes  every  man  the  judge  and  avenger 
of  his  own  wrongs.  It  was  this  principle  that  actuated  the  accused 
— this  motive  that  caused  the  awful  deed.  It  was  this  that  induced 
him,  when,  as  he  thought,  a  member  of  his  family  had  been 
insulted,  to  go  and  disgrace  the  teacher,  or  take  his  own  redress. 
And,  as  I  have  already  shown,  the  insult  was  only  a  fancied  one;  it  is 
the  duty  of  the  teacher,  when  the  boy  is"  guilty  of  any  crime,  to 
punish  him  for  it  and  inform  him  of  it.  It  is  just  as  necessary  for 
boys  to  be  punished  when  they  do  wrong,  as  for  men,  when  they 
do. 

"  But,"  says  Governor  Helm,  "  he  took  the  smallest  pistol  in  the 
whole  store — a  mere  pop-gun — therefore  he  could  not  have  intended 
to  take  life."  But  you  must  remember  that  the  size  of  the  weapon 
only  rendered  it  the  more  easily  concealed — that  it  was  a  self- 
cocking  pistol — perfectly  adapted  to  a  close  fight.  And  Mr.  Gill- 
more,  who  sold  it,  informs  you  that  this  "  pop-gun,"  as  the  gentle- 
man calls  it,  would  send  a  ball  through  an  inch  plank!  Does  this, 
or  does  the  result  which  it  produced  in  the  fatal  occurrence,  indi- 
cate that  it  was  not  a  deadly  weapon. 

They  say,  gentlemen,  that  the  right  of  self-defense  is  a  sacred 
one — that  it  has  been  conferred  upon  us  by  our  nature  and  our 
Creator,  and  cannot  be  taken  away  by  human  legislation.  I  cordi- 
ally agree  with  them,  that  the  right  is  a  high — a  holy-  an  inestim- 


TRIAL  OF  MARY  HARRIS.  35 

able  one.  I  believe  that  all  should  enjoy  it  and  be  protected  in  it. 
But  you  should  be  very  careful  not  to  permit  men,  under  the  color 
of  self-defense,  to  commit  an  outrage — to  take  measures  that  must 
call  out  an  attack — and  then,  to  kill  their  adversary.  I  regard  this 
right  as  highly  as  any  man  who  has  lauded  it  in  your  presence; 
but,  gentlemen,  as  you  hold  it  dear — as  you  would  preserve  it 
sacred  and  inviolate — beware  that  you  do  not  suffer  it  to  be  trifled 
with. 

Mr.  Wolfe  puts  a  strong  case  to  you.  He  asks,  if  a  man  has 
slandered  your  family,  in  a  peculiar  and  most  aggravated  manner, 
if  you  have  not  a  right,  under  the  laws  of  this  land,  to  go  to  him, 
and  revile  him  and  curse  him;  and,  then,  if  he  attempts  to  chastise 
you  for  it,  to  shoot  him  ?  I  promptly  answer,  No.  If  he  slander 
you,  the  law  gives  you  your  remedy,  by  an  action  for  slander,  and 
does  not  authorize  you  to  become  the  judge  of  your  own  wrongs. 
If  he  slander  your  family,  the  same  is  still  true.  The  law  recog- 
nizes no  right  to  exercise  violence  on  the  part  of  the  citizen,  except 
in  case  of  self-defense. 

The  remarks  of  Mr.  Allen  were  continued  at  length  in  this  man- 
mer,  and  are  both  effective  and  candid.  The  Court  gave  a  brief 
and  impartial  charge  to  the  jury,  who  promptly  returned  with  a 
verdict  of  "Not  Guilty"  At  the  announcement  of  the  verdict 
great  emotion  was  manifested,  joy  mingled  with  tears  and  hand- 
shaking, and  a  prompt  motion  for  the  discharge  of  Robert  Ward, 
which  was  granted,  and  dispatches  wired  to  the  New  York  Herald 
and  the  leading  Southern  papers. 


TRIAL  OF  MARY   HARRIS. 
Held  July,  1865,  at  Washington,  D.  O 

This  is  one  of  the  most  romantic  of  the  celebrated  jury  trials  in 
this  country;  interesting  alike  to  laymen  and  lawyers  throughout 
the  United  States.  The  story,  as  detailed  by  a  large  number 
of  witnesses,  the  character  of  the  parties  and  their  relations  lead- 
ing to  the  final  tragedy,  and  famous  trial,  can  be  best  furnished 
through  a  rather  lengthy  but  truly  elaborate  and  exhaustive  hypo- 
thetical question,  which  is  a  terse  statement  of  facts,  and  the  able 


36  MODERN  JURY  TRIALS. 

and  eloquent  arguments  of  counsel,  which  give  the  facts  a  unique 
and  appropriate  shading. 

The  case  was  remarkable  for  its  location,  the  large  number  of 
distinguished  visitors  to  the  accused  while  in  prison,  the."  White 
House  bouquet,"  the  singular  evidence  of  a  leading  counsel  sworn 
for  Miss  Harris,  and  lastly,  the  effect  of  the  impassioned  appeal  to 
the  jury  for  mercy,  seldom  equalled  in  any  argument.  The 
candid,  convincing  manner  of  Mr.  Bradley,  the  able  and  exhaust- 
ive logic  of  Judge  Hughes,  the  caustic  remarks  of  Mr.  Carrington, 
are  all  commendable;  but  the  speech  of  Mr.  Voorhees  was  elo- 
quent. The  closing  argument  for  the  defense  by  the  Senator 
from  Indiana,  created  a  profound  sensation;  holding  the  closest 
attention  of  all  in  the  crowded  court  room — filled  witlf  distin- 
guished visitors — for  two  hours,  nearly  all  of  which  time  many  in 
the  audience  were  moved  to  tears;  ladies  fainted;  strong  men 
wept  like  children;  others  leaned  forward  to  catch  the  slightest 
syllable,  and  hung  spell-bound  upon  the  speaker's  words. 

Personally,  Mr.  Voorhees  is  tall,  erect,  strong,  florid  faced,  with 
light  hair,  dark  eyes,  highly  rhetorical  in  style,  often  vehement 
and  powerful  in  voice  and  gesture,  at  times  reaching  to  a  pathetic 
and  touching  delivery.  His  large  form  and  general  bearing  give 
him  a  commanding  and  distinguished  appearance.  He  wins  by 
power,  pathos  and  sympathy.  There  are  times,  in  his  loftiest 
flights,  that  his  hearers  will  shudder  and  turn  pale;  but  in  this 
trial  he  grew  tender  and  pathetic,  and  often  persuasive.  It  was  an 
ideal  opportunity.  The  picture  of  a  frail  young  girl,  fair  and 
affectionate,  who  was  herself  an  appeal  more  eloquent  than  coun- 
sel's words.  The  ingenious  allusion  to  the  little  bouquet  that  Mrs. 
Lincoln  had  sent  to  the  prison  cell  from  the  White  House  was 
handled  with  graceful  skill  by  the  artful  advocate.  Nothing  was 
lacking  to  give  to  the  scene  all  the  interest  and  attraction  of  a 
splendid  tragedy — a  scene  to  be  remembered  for  a  lifetime. 

Mr.  Voorhees  has  the  requisites  of  a  western  orator:  Earnestness 
of  manner,  point  and  vigor  of  speech,  a  rapid,  sparkling  stream 
of  overflowing  language,  both  thrilling  and  pleasing,  moving  and 
magnetic — few  men  possess  such  gifts  of  forensic  eloquence. 

The  much-abused  plea  of  emotional  insanity  was  then  in  its 
infancy.  The  Cole-Hiscock  and  the  Sickles  cases  had  been  won  by 
it;  but  the  public  had  not  wearied  of  this  singular  defense.  It  has 
since  grown  more  in  public  disfavor.  But  by  it,  hundreds  are 
cleared.  The  public  reasons  from  guesses;  science  often  reasons 
otherwise.  In  a  case  like  Mary  Harris',  the  argument  -vas  apt  and 


TRIAL  OF  MARY  HARRIS.  37 

effective.  If  ever  a  mind  could  be  lost,  there  was  occasion  and 
room  enough  to  argue  a  reasonable  doubt. 

This  case  is  reported  at  length,  through  the  arguments  of  the 
learned  counsel,  as  being  peculiarly  an  example  of  how  far  the  sur- 
rounding circumstances  affect  a  jury's  verdict.  The  admission  of 
evidence  is  shown  to  be  exceedingly  liberal,  the  testimony  of  Mr. 
Bradley,  a  prominent  counsel  for  the  defense;  the  reference  to  dis- 
tinguished visitors  at  the  jail;  the  broad  scope  of  insanity  reaching 
back  to  years  of  correspondence;  the  management  of  witnesses — 
dropping  a  bad  one,  and  crowding  a  willing  enemy  with  curious 
questions — all  show  skill  and  ingenuity  of  counsel. 

But  the  climax  of  the  case  is  the  eloquent  appeal  of  Senator 
Voorhees.  Nothing  more  beautiful  in  legal  literature  can  be  read 
than  many  portions  of  his  pathetic  and  eloquent,  picture  of  the 
growth  of  a  pure  girl's  first  affection,  confidence  and  love.  When 
the  orator  says:  "He  had  carried  her  to  the  highest  pinnacle  of 
happiness  and  hope,  she  stood  upon  the  summit  of  a  glorious  expec- 
tation; and  all  around  her  sunshine  and  gladness!"  and  when  he 
added  her  own  words  of  pathos:  "  O,  Mr.  Bradley,  you  should  have 
seen  me  then!  You  should  have  seen  me  then;  I  was  so  happy  !  " 
scores  broke  out  in  sobs  and  tears.  By  using  every  art — forgetting 
not  one  single  touching  thought — the  orator  swayed  his  hearers 
like  forest  limbs  in  the  wind,  until  he  came  to  those  magic  words: 
"In  the  name  of  Him  who  showers  his  blessings  on  the  merciful, 
who  gave  the  promise  to  those  who  feed  and  clothe  the  hungry 
strangers  at  their  gates:  Unlock  the  door — unlock  the  prison  door, 
and  bid  her  bathe  her  throbbing  brow  once  more  in  the  healing  air  of 
liberty  /"  From  that  moment,  such  a  spell  came  over  all  that  they 
felt  her  freedom  in  the  air. 

This  statement  by  counsel  to  experts  embraces  a  graphic  history 
of  Mary  Harris: 

A  little  girl  not  more  than  ten  or  eleven  years  of  age — still  in 
the  dress  of  children  of  that  age — attracts  the  attention  of  a  man 
almost  old  enough  to  be  her  father.  She  had  very  few  advantages 
of  mental  or  moral  culture.  He  is  an  educated  man,  experienced 
in  the  business  and  affairs  of  life.  They  are  thrown  into  daily 
association,  he  being  engaged  in  mercantile  business,  and  she,  the 
little  girl,  in  a  millinery  and  fancy  store,  convenient  to  his  place  of 
business.  He  plays  with  her  as  a  child;  she  sits  on  his  knee  and 
receives  and  returns  his  caresses.  Two  years  or  more  pass  by, 
during  which  this  intimacy  continues  between  them,  he  being  the 
trusted  friend  of  the  lady  by  whom  she  is  employed,  and  is  daily 


38  MODERN  JURY  TRIALS. 

at  the  store.  He  fails  in  business,  and  then  comes  to  keep  and  post 
the  books  of  the  little  girl's  employer.  He  has  a  difficulty  in  the 
church  of  which  he  was  a  member,  and  is  expelled,  and  goes  to  this 
child,  just  budding  into  womanhood,  for  relief  and  sympathy.  She 
believes  him  to  be  good — good  to  her,  at  least — but  persecuted  and 
reviled  by  the  world.  He  is  a  Baptist;  she  a  Roman  Catholic. 
She  now  forms  new  associations.  Prepared  by  his  culture  and 
instruction,  she  is  admitted  into  the  best  and  most  refined  and  cul- 
tivated society  of  the  city  in  which  she  lived.  He  leaves  that  city 
to  seek  employment  elsewhere,  and  opens  a  correspondence  with 
her,  which  he  cautions  her  to  conceal  -from  her  employer.  She  is 
eminently  open  and  truthful,  yet  at  his  bidding  does  conceal  the 
correspondence.  Her  parents  discover  that  this  correspondence  is 
going  on.  Her  father  is  enraged  Her  friend's  visits  then  are  pro- 
hibited. She  counsels  with  one  of  the  most  intelligent  and  culti- 
vated ladies,  of  ripe  years,  and  having  daughters  of  the  age  of  the 
patient,  and  that  lady  consents  to  permit  them  to  meet  at  her  house. 
He  is  now  the  declared  lover  of  the  patient.  Step  by  step,  inti- 
macy between  her  and  this  lover  had  ripened  into  esteem,  regard, 
and  on  her  part  the  full  confiding  love  of  a  woman  who  trusted 
everything  to  the  man  she  loved;  and  she  is  formed,  moulded, 
trained  by  his  plastic  hand  in  her  habitudes  of  thought,  morals, 
and  manners.  She  is  absorbed  into,  and  in  all  things  controlled  by 
him.  She  yields  him  her  homage;  they  are  engaged  to  be  married. 
He  keeps  her  constantly  advised  of  his  plans  and  schemes.  Fortune 
frowns  on  his  efforts  and  he  is  too  poor  to  marry.  He  prevails  on 
her  to  leave  her  father's  house  and  come  to  him  in  a  distant  city 
and  seek  employment  there,  in  order  that  she  may  be  near  him; 
and  she  yields.  Shortly  after  she  returns  to  her  home.  Again  he 
prevails  upon  her  to  leave  the  parental  roof  and  come  to  him,  and 
she  does  so. 

Her  nervous  organization  is  fine  and  delicate;  her  mental  facul- 
ties largely  and  well  developed;  her  sense  of  female  pride  acute  and 
strong.  She  is  pure  and  virtuous,  and  continues  so  to  this  day. 
Her  bodily  health  is  remarkably  good.  She  has  more  than  ordinary 
flesh;  a  fine,  pure  complexion,  and  good  vision.  Her  temperament 
is  full  of  life  and  spirit,  and  her  life  happy,  joyous  and  gleeful. 
She  has  few  associates,  and  those  principally  married  ladies,  or 
those  older  than  herself.  Her  chiefest  pleasure  is  her  correspond- 
ence with  him.  Thus  nearly  five  years  are  passed.  In  the  mean- 
while three  different  times  had  been  assigned  for  their  marriage, 
and  as  often  it  had  been  deferred  by  reason  of  his  want  of  means 
or  employment. 


TRIAL  OF  MARY  HARRIS.  3y 

He  is  about  to  leave  the  city  where  he  is  residing  to  come  to 
Washington  in  search  of  employment.  Their  correspondence  had 
begun  November  1,  1858,  and  continued  down  to  the  spring  of 
1863.  When  he  is  thus  about  to  leave  her,  the  last  seen  of  them 
together  at  the  time,  she  was  sitting  on  his  knee,  and  he  playing 
with  her  curls. 

Six  months  elapse.  In  the  meanwhile  he  has  succeeded  in  obtain- 
ing employment  in  one  of  the  public  offices  here.  She  lives  on  in 
happy  hope,  and  the  summer  passes  without  a  ripple  on  her  sum- 
mer's sea. 

He  left  his  home  in  March.  On  the  seventh  of  August,  1863,  she 
received  a  letter  from  him,  asking  where  he  could  see  her.  He  had 
an  interview  with  her,  during  the  greater  part  of  which  he  held  her 
hand.  What  passed  between  them  is  not  known,  for  no  one  heard 
what  was  said;  but  they  seemed  to  part  as  ever — friends.  On  the 
eighth  of  September  following  she  received  another  letter,  which 
she  believed  was  written  by  him;  and,  on  the  fourteenth,  a  second, 
both  begging  her  to  meet  him  at  a  house  of  ill-fame.  She  inquired, 
and  received  clear  proof  that  these  letters,  though  written  in  a  dis- 
guised hand,  were  written  by  him.  On  being  convinced  of  this 
fact,  she  was  greatly  distressed,  and  became  wild  in  her  excitement. 
A  few  days  after  this  she  discovered  that  four  days  after  the 
receipt  of  the  first  of  these  letters,  and  one  day  after  the  receipt  of 
the  second,  he  was  married  to  another  lady  in  the  town  where  the 
patient  resided.  Within  less  than  a  week  after  this  discoveiy,  on 
the  first  return  of  the  period  mentioned  in  the  hypothetical  case 
put  by  the  prosecuting  attorney,  she  was  so  sick  as  to  require  the 
attendance  of  a  physician.  A  skillful  physician  was  called,  and  he 
treated  her  for  the  physical  disease,  but  knew  nothing  of  her  per- 
sonal history,  nor  did  he  witness  any  mental  disturbance.  The 
sickness  lasted  but  a  few  days,  but  her  spirits  were  gone,  her  health 
was  broken.  She  became  silent,  moody,  melancholy;  her  flesh  and 
strength  wasted;  her  nights  were  spent  in  sleeplessness  and  tears. 
She  went  about  her  daily  duties  as  usual,  but  with  a  broken  spirit. 
Thus  passed  on  two  or  more  periods.  At  last  her  physician  direc- 
ted that  she  should  lie  in  bed  till  after  she  had  had  her  breakfast. 
She  then  slept,  as  she  had  from  the  first  of  May,  1863,  in  the  same 
bed  with  the  lady  in  whose  employment  she  lived  as  clerk,  and  in 
the  same  chamber  with  that  lady's  sister.  There  was  a  vacant 
chamber  adjoining,  in  which  there  was  no  fire,  and,  against  their 
remonstrances,  she  would  get  up  from  that  warm  bed  and  chamber, 
in  the  inclement  climate  of  Chicago,  in  mid-winter,  and  go  into 
that  adjoining  chamber  in  her  nightclothes  only,  and  sleep  on  the 


40  MODERN  JURY  TRIALS. 

hare  floor.  During  one  of  these  periodical  sicknesses,  while  the 
putient  is  still  under  medical  treatment  and  required  by  her  physi- 
cian to  keep  her  bed  till  after  breakfast,  in  the  winter  time,  in  the 
high  northern  latitude  of  Chicago,  and  while  she  is  occupywig  the 
same  bed  with  the  elder  of  the  two  ladies  with  whom  she  lived,  she 
stealthily  got  up  from  the  bed — leaving  the  other,  as  she  supposed, 
asleep — softly  dressed  herself,  and  approached  the  bedside  of  her 
friend,  and,  believing  she  was  still  asleep,  said,  in  a  low  tone,  "  I 
must  leave  you."  The  friend  threw  her  arms  around  her  neck  and 
said:  "  Why,  where  are  you  going?"  She  answered,  "  I  wanted 
to  take  a  walk  on  the  lake  shore."  It  was  then  but  the  gray  of  the 
morning;  not  quite  day.  The  friend  restrained  her  forcibly,  and 
prevailed  upon  her  to  undress  and  go  to  bed. 

Again,  at  another  of  the  periods  of  her  sickness,  she  was  sitting 
at  table  with  her  two  friends,  her  employers,  between  whom  and 
herself  there  existed  the  most  intimate  relations  of  true  and  warm 
friendship  and  regard;  the  patient  was  sitting  nearest  the  younger 
of  her  two  friends,  to  whom,  as  nearer  her  own  age,  she  always  and 
undeviatingly  showed  warm  affection,  and  with  whom  she  had 
never  quarreled;  while  thus  sitting,  the  patient  reached  out  toward 
this  young  friend,  remarking,  "  Don't  you  want  to  read  some  fine 
letters?"  or  letter.  The  friend  recognized  the  handwriting  of  the 
man  who  had  so  long  corresponded  with  the  patient  and  had  bee: 
engaged  to  marry  her;  and  she  was  familiar  with  all  the  facts  as  to 
the  manner  in  which  that  engagement  had  been  broken  off,  and  th« 
attempt  made  by  him  to  get  the  patient  into  an  assignation  house. 
She  had  been  with  the  patient  at  the  time,  and  had  never  lost  sight 
of  her  or  been  separated  from  her  to  this  time;  and  seeing  the  let- 
ter in  the  handwriting  of  the  same  man,  she  replied,  "  No;  I  never 
want  to  see  any  of  his  writing,  or  any  other  such  a  fellow's;  and  I 
never  wish  to  hear  Burrough's  name  mentioned  again  as  long  as  I 
live."  In  an  instant  the  patient  snatched  up  a  carving  knife  and 
attacked  her  friend,  who  with  difficulty  made  her  escape,  while  the 
elder  sister,  a  large  and  strong  woman,  restrained  the  patient,  who 
is  small  and  delicate,  and  was  then  wasted  by  sickness;  arid  after 
a  severe  struggle  of  several  minutes,  succeeded  in  getting  the  knife 
from  her.  The  sister,  who  had  fled,  returned  after  a  while,  and  the 
patient  then  insisted  upon  and  attempted  to  get  out  of  the  window 
and  to  go  upon  the  street,  and  was  forcibly  restrained  by  the  two 
sisters.  The  elder,  then  thinking  relief  to  her  mind  would  be 
quicker  by  yielding  to  her,  at  last  opened  the  door,  and  let  her  go 
into  the  street.  It  was  late  in  the  afternoon.  She  also  directed 
the  younger  sister  to  follow  and  keep  the  patient  in  sight,  but  not 


TRIAL  OF  MARY  HARRIS.  41 

to  approach  her  or  let  her  see  her.  She  did  so,  and  saw  her,  after 
wandering  around  two  or  three  blocks,  stop  a  street  car,  advance  to 
it,  put  her  foot  on  the  step,  then  turn  away  and  walk  quietly  down 
the  street.  She  followed  her,  and  saw  her  enter  the  private,  or 
ladies',  entrance  of  the  principal  hotel  in  that  city;  then  returned 
and  reported  to  the  elder  sister.  The  two  sisters  then  went  for  a 
gentleman,  whose  wife  was  a  very  warm  friend  of  the  patient,  and 
who  himself  had  much  influence  with  her,  an  3  they  three  went  to 
the  hotel  and  endeavored  to  prevail  upon  the  patient  to  return 
home.  They  failed  and  left,  leaving  that  gentleman  to  look  out 
for  her.  Night  was  approaching,  and  she  came  home  alone,  com- 
posed, and  "  clothed  in  her  right  mind."  This  attack,  or  exhibi- 
tion of  violence,  was  the  longest  in  duration  that  had  then 
occurred. 

In  another  return  of  her  periodical  sickness,  without  cause  or 
provocation  of  any  kind,  she  struck  the  younger  of  the  two  sisters 
several  repeated  blows  over  the  head  with  the  window-brush — a 
heavy  brush  used  to  cleanse  the  store  windows. 

At  another  time,  during  another  sickness,  she  struck  with  a  pin- 
cushion, that  had  a  piece  of  brick  in  it  to  keep  it  in  its  place,  a 
lady  customer  in  the  store,  who  had  given  her  no  sort  of  provoca- 
tion. 

At  another  time,  whether  during  her  periodical  sickness  or  not 
does  not  appear,  she  purchased  in  Chicago  a  small-sized  Sharpe's 
revolving  pistol,  with  a  case  of  cartridges,  which  she  kept  openly 
exposed  in  her  trunk;  and  when  asked  by  the  elder  of  the  sisters 
what  she  purchased  that  for,  she  replied,  "  Many  ladies  carry  pis- 
tols;" and  added  her  fear  that  the  man  who  had  deceived  and 
deserted  her,  and  his  brother,  had  a  plan  to  seize  and  carry  her  off, 
and  she  had  this  for  her  defense. 

She  employed  an  attorney  and  counsel  in  Chicago  to  sue  the  man 
who  had  deserted  and  endeavored  to  entrap  her.  A  writ  was 
issued,  but  he  could  never  be  found.  Her  counsel  urged  and 
advised  her  to  compromise.  She  refused,  saying  it  was  not  money 
she  sought,  but  the  vindication  of  her  character;  that  she  had  suf- 
fered in  reputation,  and  desired  to  have  that  cleared  up.  She  urged 
her  counsel  to  come  to  Washington  with  her,  and  sue  him  here. 
He  declined;  and  declined  because  he  says  her  love  seemed  to  have 
been  turned  to  hate  by  the  effort  to  get  her  to  that  assignation 
house;  and  when  she  recurred  to  that,  she  became  so  excited  that 
he  thought  it  would  be  dangerous  for  her  to  meet  him,  while  at  all 
other  times  she  was  calm. 

She  herself  then  came  to  Washington  from  Chicago,  alone,  and 


42  MODERN  JURY  TRIAL& 

without  a  protector,  to  institute  a  suit  here.  She  visited  the 
department  where  he  was  employed,  and  learned  that  he  had  that 
day  gone  with  his  wife  to  Chicago.  She  took  the  return  train  and 
travelled  without  stopping,  and  when  she  reached  Chicago  found 
that  his  wife  had  arrived  there,  but  he  had  not. 

The  two  sisters  removed  from  Chicago  to  Janesville,  Wisconsin. 
She  accompanied  them.  But  change  of  scene,  while  it  relieved  and 
diminished  the  periodical  exhibitions  of  a  disturbed  mind,  did  not 
cure  it.  Her  life  was  the  same;  a  brooding  melancholy  pervaded 
it.  She  performed  all  her  duties  as  clerk  and  saleswoman,  but  she 
shunned  society,  and  her  spirits  were  gone;  and  periodically,  some- 
times not  every  month,  but  in  two  months  at  furthest,  these  exhi- 
bitions were  revived,  but  with  less  violence,  until  the  latter  part  of 
December,  1864,  when,  while  sitting  with  the  two  sisters,  and  a 
third  sister  who  had  been  at  work  making  an  expensive  patch-work 
silk  quilt,  she  seized  the  quilt  and  began  to  cut  and  tear  and  destroy 
it.  It  required  great  force  to  get  it  from  her,  and  she  was  taken 
to  her  chamber  and  securely  fastened  in.  Prior  to  that,  the  elder 
sister,  in  hope  that  it  would  bring  relief  to  her,  had  consented  to 
furnish  her  with  money  to  come  to  Washington,  in  order  to  insti- 
tute a  suit  here  for  breach  of  promise. 

On  the  first  of  January,  1865,  she  left  for  Washington,  by  the 
way  of  Baltimore,  where  the  friends  of  the  two  sisters  resided. 
She  traveled  alone.  On  reaching  Baltimore  she  went  to  a  respect- 
able boarding-house,  where  she  was  unwell  with  a  bad  cold,  and 
was  detained  for  three  weeks,  and  then  had  her  periodical  sickness. 
On  Saturday,  the  twenty-eighth  of  January,  she  communicated  to 
a  lady  who  occupied  the  same  room  with  her,  the  history  of  her 
case.  She  had  with  her  a  large  package  of  letters,  which  she  said 
she  had  received  from  Burroughs.  She  told  of  his  attempt  to  get 
her  to  that  bad  house.  She  read  parts  of  the  letters,  extending,  as 
she  said,  through  five  years.  She  stated  that  she  was  coming  to 
Washington  to  see  for  herself  whether  he  was  here,  before  she  con- 
sulted counsel;  that  she  had  attempted  once  before,  and  failed; 
that  she  had  the  name  of  a  lawyer  here  whom  she  was  to  employ; 
that  her  sole  object  was  to  vindicate  her  fame  and  reputation, 
which  had  been  injured  by  his  desertion  of  her  and  his  marriage 
with  another.  She  spoke  of  him  with  tenderest  regard,  and  said 
that  until  these  last  letters  were  written,  he  had  been  her  best 
friend — more  than  a  father  to  her;  but  his  desertion  had  injured 
her  reputation,  and  she  intended  to  sue  him  only  to  vindicate  her 
character.  This  lady  lay  awake  until  after  two  o'clock  Saturday 
night;  then  went  to  sleep,  leaving  the  patient  still  talking,  and 


TRIAL  OF  MARY  HARRIS.  43 

reading  and  handling  that  bundle  of  letters.  On  Sunday  night  the 
same  thing  occurred,  except  that  she  was  then  arranging  the  pack- 
age of  letters  which  she  was  to  carry  with  her  to  put  into  the  hands 
of  counsel.  Long  after  midnight  she  was  thus  engaged;  her  room- 
mate went  to  sleep,  leaving  her  thus  occupied.  She  had  made  an 
arrangement  with  this  lady  to  return  by  the  three  o'clock  or  half- 
past  four  o'clock  train,  and  accompany  her  to  a  lecture  to  be  deliv- 
ered that  evening  by  Henry  Ward  Beecher.  The  lady  who  kept 
the  boarding-house  was  a  party  to  this  arrangement,  and  procured 
for  the  patient  a  return  ticket.  In  the  morning  the  small  Sharpe's 
pistol  and  a  bundle  of  letters  were  lying  on  the  bureau.  She  had 
shown  the  pistol  to  the  lady  who  occupied  the  room  with  her,  and 
made  no  concealment  about  it.  While  making  her  preparations, 
she  was  called  suddenly  by  the  keeper  of  the  boarding-house  and 
told  she  was  late.  She  threw  the  bundle  of  letters  into  the  trunk, 
and,  instead  of  them,  put  the  pistol  into  her  pocket,  and  hurried 
down  stairs;  in  company  with  the  keeper  of  the  boarding-house 
went  down  to. the  cars,  and  thence  came  to  Washington  alone. 
She  went  to  the  Treasury  Department,  inquired  for  and  opened 
the  door  of  the  room  in  which  he  was,  and  saw  him  distinctly. 
She  was  seen  by  at  least  one  of  the  inmates  of  the  room  so  distinctly 
as  to  enable  her  to  identify  her  here  in  court,  and  who  was  so  struck 
with  her  appearance  at  the  time  that  she  half  arose  to  ask  her  to 
come  in,  when  the  patient  closed  the  door. 

An  hour  or  more  after  this,  as  the  clerks  were  leaving  the  office, 
he  came  near,  or  passed  her  in  the  passage.  She  drew  the  pistol 
and  fired.  No  one  saw  her  fire,  but  there  were  three  persons  near 
by  who  saw  her  instantly  after  the  shot  was  fired.  The  shot  took 
effect  on  the  deceased,  who  turned,  saw  her,  exclaimed,  "  O  my 
God!"  and  fled.  She  then  cocked  her  pistol,  leveled  it  in  the  direc- 
tion in  which  he  fled,  and  when  he  was  about  twenty  yards  from 
her  fired  a  second  time,  without  effect,  and  he  disappeared  around 
a  corner  of  the  hall  in  which  they  were.  She  then  turned  and 
walked  quietly  down  stairs  and  out  of  the  building.  She  was  very 
pale,  very  calm,  very  quiet,  and  there  was  a  remarkable  expression 
in  the  eye.  She  was  arrested  just  outside  of  the  building  and 
taken  back  into  it,  and  placed  in  a  room  with  a  policeman  either  at 
the  door  or  in  the  room.  By  this  time  a  justice  of  the  peace  had 
got  to  the  room,  and  on  his  telling  her  he  was  a  justice  of  the  peace 
she  immediately  handed  the  pistol  to  him.  Up  to  that  time  she 
had  not  shed  a  tear;  she  paced  the  room  in  violent  agitation;  tore 
her  hair;  knelt  on  the  floor  and  sprang  up;  knelt  to  the  justice  and 
was  raised  by  him  more  than  once;  her  face  was  convulsed,  but 


44  MODERN  JURY  TRIALS. 

she  shed  no  tear.  Mr.  McCullough,  the  present  Secretary  of  the 
Treasury,  came  in  and  spoke  to  her.  She  asked  if  Burroughs  was 
dead.  He  said  he  had  often  on  the  stage  seen  representations  of 
mental  agony,  but  he  never  witnessed  the  reality  till  then.  She 
was  still  tearless.  He  fixed  her  attention  for  a  moment  and  put 
two  questions  to  her:  one  whether  Burroughs  had  wronged  her  in 
any  other  way;  the  other  whether  she  was  a  virtuous  woman.  She 
answered  both  rapidly,  and  relapsed  instantly  into  the  same  i  .\ 
ment.  To  the  latter  question  she  replied,  solemnly  and  clearly, 
"  As  God  is  my  judge,  I  am."  She  was  on  her  knees,  clinging  to 
his  clothes.  He  raised  her  more  than  once.  Her  exclamations 
were,  chiefly,  "Why  .did  I  do  it;"  or,  "how  could  I  do  it;"  "I 
loved  him  better  than  my  life;"  "I  would  have  died  for  him," 
etc.,  etc.  The  policeman  was  present  during  this  interview.  She 
was  committed  to  jail,  and  he  says  that  when  on  her  way  to  the 
jail  she  told  him  that  Burroughs  had  caused  her  to  be  driven  from 
home  and  friends;  that  he  had  taken  her  to  a  bad  house  and  had 
seduced  her;  that  she  had  procured  that  pistol  and  came  here  to 
avenge  the  injury,  and  that  she  had  doue  so.  He  understood  that 
she  said  she  had  got  the  pistol  just  before  she  left  home,  and  came 
directly  here  for  that  purpose.  The  policeman  cautioned  her 
against  making  any  statements,  yet  she  persisted  in  doing  so. 
During  the  whole  time  she  was  greatly  excited,  and  when  they 
reached  the  jail  she  was  so  exhausted  that  she  had  to  be  supported 
by  him  and  others  into  the  jail. 

For  days  after  her  commitment  she  paced  the  room  in  violent 
agitation.  By  the  latter  part  of  February  she  had  calmed  down. 
Two  friends,  a  gentleman  and  his  wife,  from  her  old  home  in  Bur- 
lington— persons  of  education  and  large  intelligence — came  to  see 
her,  the  lady  passing  the  greater  part  of  her  time  for  a  week  in 
the  prison.  She  was  so  changed  they  would  not  have  known  her 
had  they  not  conversed  with  her.  She  was  changed  in  appearance, 
mind,  and  manner.  This  was  during  her  periodical  sickness.  In 
the  latter  part  of  March,  during  that  condition  her  pulse  was  about 
110,  and  her  hands  were  cold.  She  spoke  incoherently  of  the  death 
of  Burroughs. 

On  its  recurrence  in  April,  as  on  the  previous  occasion,  she 
showed  great  insensibility  to  cold.  Her  pulse  was  nearly  120;  the 
back  part  of  her  head  very  warm,  and  her  hands  as  cold  as  if  they 
had  been  in  water.  When  speaking  of  any  matter  connected  with 
this  charge,  the  pupil  of  the  eye  was  so  dilated  as  almost  to  cover 
the  iris.  At  times  the  face  was  fixed,  and  the  eye  fixed  on 


TRIAL  OF  MARY  HARRIS.  45 

vacancy,  as  in,  or  similar  to,  cases  of  catalepsy.  She  did  not  believe  ' 
Burroughs  was  dead;  she  said  she  saw  him  there;  had  frequently 
seen  him  in  that  chamber.  She  was  with  difficulty  calmed  down, 
and  then  she  became  cheerful.  After  a  brief  space  the  excitement 
returned;  the  pulse  rose  to  near  120;  the  same  condition  of  the 
face  and  eyes  returned;  she  talked  incoherently.  This  continued 
for  half  an  hour  or  more,  when  she  became  composed. 

On  the  return  of  her  sickness  in  May,  the  same  physical  condi- 
tion existed  as  in  April,  but  in  a  much  more  excited  form.  Still 
greater  mental  disturbance  was  disclosed  in  her  language  and  acts. 
She  said  she  would  not  stay  any  longer  in  that  prison;  that  she  was 
going  out;  that  bars  could  not  restrain  her.  She  exhibited  great 
violence  of  manner.  She  fancied  she  heard  dreadful  cries  and 
voices  and  shrieks.  This  occurred  again  in  a  less  degree  on  tho 
next  day,  and  on  the  third  and  fourth  days  after  that.  Her  con- 
versation and  language  on  these  occasions  showed  that  she  thought 
and  spoke  of  Burroughs  as  then  alive,  and  she  spoke  of  him  in 
terms  of  endearment. 

In  June,  at  the  periodical  return,  there  were  but  slight  changes 
from  her  normal  condition.  During  the  intervals  the  patient  is 

tirely  possessed  of  her  faculties,  but  is  generally  very  quiet,  and 
ftentimes  melancholy — with  a  temperament  altogether  changed 
from  what  it  was  up  to  the  time  of  her  disappointment  in  love. 

To  the  Doctor.  Q.  I  will  now  ask  you  whether  you  think  she 
has  been,  at  any  time  up  to  this  period,  the  subject  of  mental  or 
moral  insanity  ?  A.  I  have  no  hesitation  in  saying  that,  having 
reference  simply  -to  the  hypothetical  case  so  minutely  detailed  by 
the  counsel,  Mr.  Bradley,  that  the  person  labored  under  a  deranged 
intellect,  paroxysmally  deranged,  produced  by  moral  causes,  and 
assisted  or  increased  by  a  physical  cause,  derangement  of  the  uterus. 

EXTRACTS  OF  EVIDENCE, 

SHOWING  SKILL  IN  EXAMINATION  AND  MANAGEMENT  OF  TRIAL. 

Louisa  Devlin,  sworn: 

By  Mr.  BRADLEY.  Q.  State  where  you  were  residing  in  the 
spring  of  1863?  A.  I  was  at  Chicago. 

Q.  Were  you  engaged  in  business  there,  and  if  so,  in  what  busi- 
ness ?  A.  I  was  engaged  in  the  millinery  and  fancy  business  there. 

Q.  State  if  you  removed  from  Chicago  at  any  time,  and  where 
you  \vent  ?  A.  I  moved  from  Chicago  in  July,  1864,  to  Janesville, 
Wisconsin. 


46  MODERN  JURY  TRIALS. 

Q.  State  if  at  any  time  you  became  acquainted  with  the  defend- 
ant, and  if  so,  when  and  where  ?  A.  I  became  acquainted  with  the 
defendant  in  March  or  April,  1863,  in  Chicago. 

Q.  State  if  she  ever  came  to  reside  with  you,  and  the  .circum- 
stances under  which  she  came  ?  A.  She  told  me  she  had  come  to 
Chicago  to  look  out  for  a  situation. 

Q.  Did  she  obtain  one,  and  if  so,  with  whom  ?  A.  She  did.  I 
employed  her  the  first  of  May,  1863,  as  a  clerk. 

Q.  State  whether  she  has  or  not  resided  with  you  ever  since, 
until  her  present  visit  to  Washington  ?  A.  Yes,  sir;  and  she 
resided  with  me  until  she  came  on  to  Washington. 

•Q.  It  is  necessary,  Miss  Devlin,  for  the  jury  to  understand  the 
relations  which  subsisted  between  you.  I  will  ask  you  whether 
she  occupied  the  same  chamber  and  the  same  bed  with  you  ?  A. 
Yes,  sir;  until  she  came  here. 

Q.  What  was  her  position  under  you  ?     A.  She  was  a  clerk. 

Q.  State  what  was  the  condition  of  the  health  of  Miss  Harris 
during  the  first  five  or  six  months;  and  after  she  came  to  live  with  ^- 
you  ?    A.  Her  health  was  good.  • 

Q.  State  what  was  her  temper  and  disposition  during  that  time  ? 
A.  Her  temper  was  good  and  her  disposition  also., 

Q.  How  as  to  her  spirits  ?  State  whether  she  was  lively  or 
melancholy  ?  A.  She  was  very  lively  in  disposition. 

Q.  What  did  you  observe  in  regard  to  her  going  into  society  ? 
A.  She  went  into  no  society  whatever,  except  that  that  I  was  in,     '    \ 
There  were  very  few  that  we  associated  with.  . 

Q.  Did  you  at  any  time,  during  the  period  that  Miss  Harris  was  { 
living  with  you,  see  the-  deceased  Mr.  Burroughs  ?    A.  I  did.     I 
saw  the  deceased  twice  at  our  boarding  house,  in  March,   1863, 
where  she  boarded. 

Q.  Was  she  boarding  at  the  same  house  with  you  ?  A.  Yes,  sir. 
I  saw  him,  also,  twice  at  my  store  during  that  summer. 

Q.  State  whom  he  came  to  visit  at  that  boarding  house,  and  to 
whom  he  paid  his  attentions  ?  A.  The  first  time  I  heard  him  in 
the  hall  at  the  boarding  house,  he  asked  for  Miss  Mary  Harris;  and 
when  he  came  to  my  store  he  asked  me  for  her. 

Q.  Did  you  see  them  at  any  time  during  the  interview  between 
them  ?  A.  Yes,  sir;  I  saw  them  both  during  the  interview  at  the 
boarding  house,  and  in  my  store. 

Q.  Did  you  learn  from  him  or  her,  when  both  were  together  at 
that  time,  whether  he  was  paying  his  attentions  to  her  or  not  ?  A. 
I  never  had  any  conversation  with  them. 


TRIAL  OF  MARY  HARRIS.  47 

Q.  Did  you  at  any  time  become  aware  of  the  fact  that  she 
received  letters  from  him  ?  A.  Yes,  sir. 

Q.  Did  you  ever  see  them  !     A.  Yes,  sir. 

Q.  Did  you  have  an  opportunity  to  read  the  letters,  so  as  to 
become  acquainted  with  his  handwriting  ?  A.  Yes,  sir. 

Q.  State  whether,  after  she  had  been  residing  with  you  some 
time,  you  observed  any  change  in  Miss  Harris;  and  state  about  the 
time  when  you  observed  such  change  ?  A.  Well,  the  change  was 
after  the  marriage  of  Burroughs,  in  September,  1863.  Previous  to 
that  time  the  cheerfulness  of  character  which  I  have  described,  and 
kindly  disposition  continued. 

Q.  You  observed  no  change  in  character  before  the  time  of 
which  you  speak  ?  A.  No,  sir. 

Q.  State  as  accurately  as  you  can  how  that  change  established 
itself  ?  A.  After  the  receipt  of  these  anonymous  letters,  and  feel- 
ing satisfied  that  it  was  Burroughs  who  wrote  them,  she  became 
almost  frantic,  and  at  such  times  she  would  not  know  what  she  was 
doing  or  saying.  During  that'  night  she  commenced  to  cry,  and 
continued  crying  almost  incessantly  for  two  or  three  days. 

Q.  How  long  did  she  remain  in  that  condition  !  A.  For  many 
weeks.  That  is,  continued  so  almost  incessantly  for  two  or  three 
days,  and  then  at  intervals  for  two  or  tree  weeks;  sometimes  every 
night,  and  sometimes  two  or  three  nights  in  a  week. 

Q.  Did  she,  during  that  time,  continue  to  occupy  the  same  bed 
with  yourself  ?  A.  Yes,  sir. 

Q.  Do  you  recollect  whether  you  called  in  the  aid  of  any  physi- 
cian at  that  time,  and  if  so,  who  ?  A.  I  did  about  a  month  after 
that  time — Dr.  Fitch,  of  Chicago. 

Q.  Up  to  the  time  you  thus  called  in  Dr.  Fitch,  had  you  noticed 
anything  in  regard  to  her  sleep — whether  she  slept  soundly  or  not? 
A.  She  slept  but  very  little. 

Q.  State  whether,  after  Dr.  Fitch  had  been  called  in,  and  during 
the  winter  of  '63-64,  you  remember  any  remarkable  incidents  in 
her  conduct;  and  if  so,  repeat  them  as  far  as  you  can?  A.  When 
Dr.  Fitch  prescribed  for  her,  one  of  his  prescriptions  was,  that  she 
was  to  sleep  long  in  the  morning. 

Q.  Before  or  after  breakfast  ?     A.  After. 

Q.  She  was  to  have  her  breakfast  in  bed  ?  A.  Yes,  sir.  One 
morning,  when  I  had  scarcely  perceived  it  was  daylight,  I  saw^her 
dressing.  I  said  nothing;  and  supposing  me  to  be  asleep,  after  she 
was  dressed  she  came  to  the  bed,  and  leaning  over  me,  said:  "I 
have  to  leave  you,  but  I  am  sorry  to  have  to  leave  you."  I  put  out 
my  hands  and  caught  her  around  the  neck,  and  asked  her  what  she 


48  MODERN  JURY  TRIALS. 

was  going  to  do.  She  would  not  tell  me.  I  insisting  on  knowing, 
she  then  said  she  was  going  to  have  a  walk  on  the  lake  shore. 

Q.  Was  she  quiet  in  her  manner  at  that  time  ?  A.  She  was 
rather  insensible.  She  looked  to  me  as  if  she  did  not  know  what 
she  was  doing  or  saying.  When  I  caught  her  around  the  neck,  I 
t  hought  she  was  going  to  run  out  of  the  room.  I  then  got  her  to 
undress  herself  and  get  into  bed. 

Q.  Do  you  now  recollect  what  period  of  the  year  that  was  ?  A. 
It  was  in  November. 

Q.  After  that,  do  you  recollect  anything  remarkable  in  her  con- 
duct that  happened  during  the  same  winter?  A.  Shortly  after, 
she  went  into  the  yard  one  day  with  a  large  window  brush,  and 
struck  my  sister  two  or  three  times  over  the  head,  without  any 
provocation  whatever  from  her. 

Q.  Do  you  remember  any  other  incident  during  that  winter  !  A. 
Yes,  sir.  She  was  not  feeling  very  well  one  evening,  and  she  called 
me  to  the  bedside,  and  held  me  by  the  wrists.  I  begged  her 
several  times  to  let  me  go;  but  no;  she  held  me  tighter,  seeming 
to  have  more  strength  than  usual.  She  held  me  for  about  a  quar- 
ter of  an  hour.  That  she  did  several  times. 

Q.  Do  you  remember  any  other  incident  during  that  year,  and 
before  you  went  to  Janesville  ?  A.  I  remember  of  many  instances 
where  she  commenced  to  tear  up  books,  clothing,  and  anything 
that  she  could  lay  her  hands  on.  At  another  time  she  ran  at  my 
sister  with  a  carving-knife,  to  stick  her.  That  was  the  second  Sun- 
day in  January,  1864. 

Q.  Do  you  know  what  had  passed  between  them  just  before 
then,  and  what  was  the  subject  of  conversation  ?  A.  No,  sir.  We 
were  at  dinner,  and  without  anything  being  said  that  could  at  all 
offend  her,  she  got  up  and  ran  at  her  with  a  knife,  to  stick  her. 

Q.  You  did  not  hear  your  sister  make  any  remark  to  her  yourself, 
before  this  attack  with  the  carving  knife  ?  A.  No,  sir.  My  sister 
often  told  me  that  she  was  crazy. 

Q.  How  did  you  manage  to  prevent  her  striking  your  sister  with 
the  carving  knife?  A.  I  held  her  by  the  shoulders.  Then  she 
tried  to  leap  out  of  the  window  into  the  street.  I  had  to  open  the 
door  and  let  her  go,  but  sent  my  sister  out  to  watch  where  she 
went.  She  at  first  ran  around  the  street,  not  apparently  knowing 
where  to  go,  but  at  last  went  into  the  Tremont  House.  I  went 
and  tried  to  get  her  home,  but  she  would  not  come.  It  was  then 
near  dark;  and  when  it  got  dark  she  came  home  by  herself. 

Q.  Was  that  the  evening  you  got  Mr.  O.  H.  Harris  to  go  after 
her?  A.  Yes,  sir. 


TRIAL  OF  MARY  HARRIS.  49 

Q.  He  is  no  relation  of  hers,  as  I  understand  ?     A.  No,  sir. 
-  Q.  Do  you  know  of  any  subsequent   instances   of    excitement 
before  you  went  to  Janesville?    A.  Yes,    sir;    many.     One  little 
instance  that    happened    at    Janesville,  some  eight  or   ten   days 
before  she  came  down  to  Washington,  I  remember  particularly. 

Q.  That  was  last  December,  then  ?  A.  Yes,  sir.  My  sister  (not 
Jane,  but  another  sister),  having  opened  a  handsome  silk  quilt  that 
she  was  piecing,  to  show  it  to  us,  Miss  Harris  looked  down  at  it, 
then  took  hold  of  it,  and  commenced  tearing  it. 

Q.  Describe  what  kind  of  a  quilt  this  was.  A.  It  was  a  fancy 
silk  quilt,  pieced. 

Q.  What  did  she  say  when  she  took  hold  of  it  ?  A.  She  did 
not  say  anything.  She  seldom  ever  spoke  when  she  was  in  those 
excited  ways. 

Q.  How  was  she  prevented  from  tearing  that  quilt  to  pieces  ? 
A.  I  took  it  from  her,  and  then  succeeded  in  getting  her  into  her 
room,  when  she  halloaed  repeatedly,  "  Let  me  out,  until  I  spread  all 
the  preserves  in  the  house  over  the  carpets." 

Q.  State  whether,  on  such  occasions,  you  required  any  assist- 
ance in  holding  her,  or  whether  her  strength  was  the  same  as 
usual,  or  noi?  A.  Yes,  sir;  when  in  these  spells,  I  had  oftentimes 
to  have  assistance.  Her  strength  was  much  greater  on  such  occa- 
sions. 

Q.  Now,  we  will  go  back  to  1863.  You  say  you  have  seen  Mr. 
Burroughs'  handwriting  often  enough  to  be  able  to  distinguish  it  ? 
A.  Yes,  sir. 

Q.  Were  you  in  court  yesterday,  when  the  letters  from  Bur- 
roughs to  Miss  Harris  were  read  ?  A.  I  was. 

Q.  Do  you  recognize  them  as  any  of  the  letters  you  heard  read  ? 
A.  I  recognized  them  all. 

Q.  State  whether  this  letter,  dated  Chicago,  August  7,  1863 
(handing  witness  the  same),  is  in  the  handwriting  of  Mr.  A.  J. 
Burroughs  ?  A.  It  is. 

The  letter  was  admitted,  and  read  by  Mr.  Bradley,  as  follows: 

CHICAGO,  August  7,  1863. 

DEAR  MOLLIH — I  am  again  in  town  for  a  few  days,  and  wish  to 
*ee  you.  Drop  me  a  note  to  Box  5982,  stating  where  I  can  see  you. 

Very  truly, 

A.  J.  BURROUGHS. 

Q.  State  whether  you  saw  that  letter  at  or  about  the  time  it  was 
received  by  Miss  Harris,  and  where  you  saw  it?     A.  I  do  not  rec- 
4 


50  MODERN  JURY  TRIALS. 

ollect  where  I  saw  that  letter,  but  she  read  me  the  letter,  though 
at  the  time  I  did  not  see  the  handwriting. 

Q.  Now,  look  at  this  envelope  and  the  letter  therein  inclosed 
(handing  witness  the  same),  and  state  whether  you  saw.it  at  or 
about  the  time  of  its  date  ?  A.  I  saw  this  on  the  day  she  received  it. 

Q.  In  whose  handwriting,  in  your  judgment,  is  that  letter  1  A. 
In  my  judgment,  it  is  in  the  same  handwriting  as  the  others — Bur- 
roughs.' 

Q.  In  the  meanwhile,  or  immediately  or  shortly  after  the  date  ot 
that  first  letter,  of  seventh  of  August,  had  you  seen  Mr.  Bur- 
roughs, and  where  did  you  see  him  ?  A.  I  saw  him  about  five  or 
six  weeks  before  he  was  married;  the  date  I  do  not  know.  He 
called  at  my  store  to  see  Miss  Harris. 

Q.  State  whether  or  not  he  had  any  interview  with  Miss  Harris 
at  that  time?  A.  Yes,  sir.  He  remained  in  my  store  then  with 
her  for  about  an  hour,  or  an  hour  and  a  half. 

Q.  Did  you  see  him  at  the  store  at  any  other  time  ?  A.  Yes,  sir; 
I  had  seen  him  at  the  store  once  before. 

Q.  Are  you  able  to  say  Miss  Harris  never  saw  him  after  this 
interview  of  which  I  speak  ?  A.  Never  that  I  know  of. 

Q.  State  whether  or  not  she  was  constantly  in  the  store  for 
months  before  the  receipt  of  this  letter  ?  A.  She  was. 

Q.  Could  she  have  left,  so  as  to  have  had  an  interview  with  him 
anywhere?  A.  No,  sir.  She  could  not  have  been  gone  an  hour 
without  my  knowing  where  she  was.  She  and  I  went  and  returned 
from  the  store,  and  also  remained  and  slept  together. 

Q.  State,  as  well  as  you  can  recollect,  all  in  regard  to  this  last  lette 
I  showed  you — this  letter  of  September  12;  where  you  saw  it  ana  all 
the  circumstances  connected  with  it  ?  A.  This  letter  I  saw  when 
it  came  in  the  house.  Miss  Harris  brought  it  from  the  postoffice. 
She  read  it,  and  then  remarked,  "  Who  in  the  world  couli.  have 
written  the  like  of  this  to  me?"  She  read  it  first  to  m«»,  and  then 
I  looked  over  it.  I  went  and  inquired  what  kind  of  a  house  it  was; 
and,  when  I  found  out  what  sort  of  a  place  it  was,  I  proposed  to 
answer  the  letter,  and  find  out  who  had  written  it. 

Q.  Did  she,  or  you,  or  any  one  that  you  know  of,  write  any 
answer  to  that  letter  ?  A.  I  wrote  such  answer,  and  signed  her 
name. 

Q.  Just  state,  in  regard  to  that  letter,  whether  that  is,  or  not,  in 
the  handwriting  of  Mr.  Burroughs?  A.  Yes,  sir;  I  think  it  is. 

[Witness  was  handed  letter  dated  twelfth  of  September,  1863, 
the  handwriting  of  which  she  identified  as  that  of  Burroughs.] 


TRIAL  OF  MARY  HARRIS.  61 

Q.  State  when  and  where  you  first  saw  that  letter  ?  A.  This  Miss 
Harris  also  brought  in  from  the  postoffice. 

Q.  Did  you  see  her  open  it,  and  see  the  contents  of  the  letter  ? 
A.  Yes,  sir. 

Mr.  WILSON— What  is  the  date  of  that  ?  A.  Twelfth  Septem- 
ber. 

The  letters  referred  to  were  then  read,  and  offered  in  evidence. 
They  are  as  follows  : 

CHICAGO,  September  8th,  1861, 
Miss  MOLLT  HARRIS,  Chicago  : 

DEAR  MOLLY — I  am  aware  that  it  is  stepping  somewhat  beyond 
the  bounds  of  true  propriety  for  a  comparative  stranger  to  address 
a  note  to  a  young  lady,  requesting  her  to  meet  him,  but  my  hope  is 
that  you  will  excuse  the  presumption  and  accede  to  my  request.  I 
have  had  the  pleasure  of  seeing  you  several  times,  but  never  have 
had  the  honor  of  an  introduction.  Now,  my  dear  Molly,  I  have 
some  things  to  say  to  you  which  I  know  you  will  be  glad  to  hear, 
and  I  know  of  no  better  way  to  say  them  than  for  you  to  meet  me, 
say  on  Friday,  September  llth,  at  94  Quincy  street,  at  one  and  a 
half  o'clock  in  the  afternoon.  I  am  perfectly  well  acquainted  with 
the  lady  who  keeps  the  house,  and  I  know  we  can  talk  there  with- 
out interruption.  You  will,  perhaps,  have  some  hesitancy  in  com- 
ing, but  you  need  not  have,  as  I  can  assure  you  my  sole  motive  in 
requesting  the  interview  is  that  we  may  become  acquainted,  and 
that  mutual  friendship  may  result  from  it.  I  am  confident  I 
can  convince  you  with  a  few  words  of  conversation  that  my  sole 
desire  is  to  be  your  friend,  and  I  think  a  meeting  would  do  us  both 
good.  Will  you  come  ?  Do. 

If  you  would  rather  I  would  see  you  at  some  other  place,  write 
where,  and  I  will  come.  If  you  think  it  improper  to  meet  me,  I 
hope  you  will  at  least  answer  this  note  and  state  your  objections. 

Your  friend, 

J.  P.  GREENWOOD. 

CHICAGO,  September  12,  1863. 

DEAR  Miss  MOLLY — Your  favor  of  Thursday  was  duly  received, 
and  I  was  sorry  to  read  that  you  could  not  come  at  the  hour 
1  appointed.  Unfortunately,  I  had  a  previous  business  engagement 
at  half-past  three  o'clock,  which  is  my  excuse  for  not  coming.  My 
engagement  was  of  such  a  nature  that  it  was  almost  impossible  for 
me  to  neglect  it.  I  should  have  been  most  happy  to  have  seen 
you.  I  have  been  absent  from  the  city  since  Friday  night;  have 


52  MODERN  JURY  TRIALS. 

just  returned  this  evening,  and  I  now  embrace  the  first  leisure 
moment  to  say  to  you  that  I  will  see  you  on  Tuesday,  at  half-past 
two  o'clock,  at  the  place  formerly  designated  (94  Quincy  street), 
provided  it  is  perfectly  satisfactory  to  you.  I  am  very  anxious  to 
cultivate  your  acquaintance,  which  I  think  will  result  to  our  mutual 
good,  and  I  hope  you  will  grant  me  the  privilege  of  proving  to  you 
that  I  desire  only  to  be  your  friend. 

I  will  here  say  I  have  had  the  pleasure  of  seeing  you  several 
times,  but  never  have  had  an  introduction. 

If  you  cannot  come  at  the  time  I  have  appointed,  please  say  by 
note  when  you  can  come;  or,  if  you  prefer  seeing  me  at  some  other 
place  than  94  Quincy,  if  you  will  be  kind  enough  to  state  the  time 
and  place  I  will,  if  possible,  see  you. 

Tour  friend, 

J.  P.  GREENWOOD. 

Q.  I  understand  you  to  say  that  you  wrote  the  answer  to  that, 
and  signed  the  name  of  Miss  Harris  ?  A.  Yes,  sir. 

Q.  What  did  you  do  with  the  answer  to  the  letter  of  the  eighth  ? 
A.  I  mailed  it  myself. 

Q.  Can  you  recollect  whether  or  not  you  gave  any  instructions 
to  the  postmaster  in  regard  to  that  letter  of  September  12,  1863? 
A.  I  showed  the  envelope  and  the  address  to  the  clerk  in  the  post- 
office,  and  told  him  to  look  particularly  at  the  person  who  called 
for  that  letter,  and  describe  him  to  me  when  I  called.  He  said  he 
would  do  so.  I  told  him  to  look  particularly  at  his  hand. 

Q.  For  what  purpose  did  you  give  that  instruction  to  the 
clerk  ?  A.  For  the  purpose  of  identifying  the  person  who  wrote 
the  letter. 

Q.  Did  you  call  at  the  postoffice  at  any  time;  and,  if  so,  how 
soon  after  you  had  deposited  that  second  letter?  A.  I  deposited 
the  letter  on  the  twelfth,  the  day  it  was  written. 

Q.  When  did  you  call  for  the  answer?  A.  I  called  for  the 
answer  on  Monday,  the  fourteenth. 

Q.  Was  that  the  next  day?  A.  I  deposited  the  letter  on  Satur- 
day, the  twelfth,  and  on  Monday,  the  fourteenth,  called  for  the 
answer. 

Q.  Who,  if  anybody,  went  with  you  when  you  called  for  that 
answer?  A.  I  went  first  myself. 

Q.  Did  you  afterwards  go  again  the  same  day  ?     A.  Yes,  sir. 

Q.  Did  anybody  then  go  with  you?     A.  Yes,  sir;  Miss  Harris. 

Q.  State  what  passed  between  you  in  her  presence  in  regard  to 
the  person  who  got  that  letter  ?  A.  He  described  the  man  to  ua 


TRIAL  OF  MARY  HARRIS.  53 

He  said  he  was  a  man  who  weighed  about  170  pounds;  that  he  had 
black  hair,  a  heavy  black  beard,  a  rather  pretty  hand  for  a  man  of 
his  size,  was  of  medium  height,  and  on  his  finger  wore  a  set  ring. 

Q.  Did  he  describe  the  ring  ?  A.  He  did.  I  do  not  remember 
the  description,  however,  but  Miss  Harris  turned  round  and  said, 
"  That  is  the  ring  I  gave  Mr.  Burroughs  ?  " 

Q.  Do  you  know  whether  or  not,  after  this  description  was  given, 
a  photograph  was  exhibited  to  him?  A.  Miss  Harris  handed  the 
clerk  the  photograph. 

Q.  Is,  or  is  not,  that  the  photograph  (handing  witness  a  carte-de- 
visite)  ?  A.  That  is  it. 

Q.  What  did  he  say  when  that  was  exhibited  to  him  ?  A.  After 
looking  at  it,  he  said,  "Well,  yes,"  and  then  hesitated;  but  after- 
wards added,  "  I  do  not  know,  as  the  beard  on  this  is  higher  than 
he  wore  it."  I  asked  him  how  much  higher.  He  said,  "  Well,  I 
guess  something  about  an  inch." 

Q.  Did  he  say  anything  about  the  dress  ?  A.  He  said  that  it 
might  be  the  same  person;  that  he  could  tell  more  accurately  if 
this  person  was  in  the  clothes  he  appeared  in  when  he  came  to  the 
postoffice.  He  said  the  person  who  called  for  the  letter  was  in  cit- 
izen's dress,  with  a  heavy  outside  coat  on. 

Q.  Miss  Devlin,  you  have  seen  him  often  enough  to  know  whether 
that  is  his  photograph  or  not?  A.  Yes,  sir,  it  is.  I  saw  him  in  his 
military  uniform. 

Q.  Where  did  you  and  Miss  Harris  go  after  the  interview  at  the 
postoffice  ?  A.  We  went  home. 

Q.  Describe  to  the  jury,  as  well  as  you  can,  what  effect  was  pro- 
duced upon  Miss  Harris  by  this  information.  A.  She  got  very 
much  excited,  and  said  she  never  thought  he  would  turn  out  to  be 
such  a  rascal. 

Q.  Do  you  know,  of  your  own  knowledge,  whether  or  not  that 
same  day  she  started  to  go  out  to  the  place  where  she  supposed  Mr. 
Burroughs  to  be?  A.  I  went  out  on  that  same  day  myself  (Mon- 
day, the  fourteenth),  to  call  upon  the  Rev.  Dr.  Burroughs,  to  know 
from  him  if  his  brother  was  in  town. 

Q.  After  making  this  inquiry,  what  was  done  with  Miss  Harris 
that  you  know  of  ?  A.  Miss  Harris,  when  she  learned  that  he  had 
been  in  town,  was  more  confident  that  it  was  him. 

Q.  Do  you  know  whether  she  went  herself  to  Dr.  Burroughs  and 
took  letters;  and  if  so,  what  letters  ?  A.  She  said  she  would  go 
the  next  day  and  return  his  likeness,  and  all  the  letters  she  had  of 
his,  to  Dr.  Burroughs,  and  would  let  him  know  what  a  great  rascal 
his  brother  was. 


54  MODERN  JURY  TRIALS. 

Q.  Did  she  leave  your  house  ?     A.  She  did 

Q.  Did  she  take  anything  with  her?    A.  She  did;  all  the  letters. 

Q.  Did  she  take  the  two  anonymous  letters  also  ?    A.  Yes,  sir. 

Q.  How  long  was  she  gone  ?  A.  I  could  not  say  exactly,  but  she 
might  have  been  gone  over  two  hours. 

Q.  When  she  returned  did  she  bring  back  all  the  letters,  or  not  ? 
A.  She  brought  them  all  back.  She  said  she  showed  the  anony- 
mous letters  to  Dr.  Burroughs,  and  he  tried  to  persuade  her  to 
think  that  it  was  not  his  brother  who  had  written  them  She  then 
said  he  acted  in  such  a  strange  manner  towards  her,  his  hand  trem- 
bled, and  she  thought  there  was  some  plot  between  him  and  his 
brother  about  the  affair.  She  did  not  tell  him  she  had  these  other 
letters,  but  concluded  to  bring  them  back  again.  It  was  on  the 
fifteenth  of  September  she  went  there.  She  also  told  me  that  she 
saw  A.  J.  Burroughs  coming  in  in  the  cars  as  she  was  going  out; 
that  he  poked  his  head  out  of  the  cars  and  looked  at  her. 

Q.  You  mean  the  horse-cars  running  out  to  the  University  ?  A 
Yes,  sir. 

Q.  Do  you  know  whether  she  went  with  any  one  else;  and  if  any 
one,  who,  to  make  further  inquiries  before  she  had  gone  to  Dr.  Bur- 
roughs, as  to  the  identity  of  the  person  who  wrote  these  letters  ? 
A.  Yes,  sir;  my  sister  and  Miss  Harris  went  to  the  assignation  house 
on  Quincy  street. 

Q.  Was  that  before  or  after  she  had  been  to  Dr.  Burroughs  ?  A. 
Before.  It  was  the  day  that  I  went  out. 

Q.  State  whether,  when  she  gave  you  an  account  of  her  interview 
with  Dr.  Burroughs,  she  stated  that  she  had  learned  from  him  that 
his  brother,  A.  J.  Burroughs,  was  in  Chicago?  A.  She  said  lie 
said  his  brother  was  in  Chicago  for  some  time,  but  that  he  was  not 
in  Chicago  at  the  time  the  first  letter  was  written.  He  was  not  in 
Chicago  on  the  eighth  of  September,  and  that  he  had  left  the  second 
day  before  that  for  Washington. 

Q.  Do  you  recollect  ever  having  seen  a  pistol  in  the  possession  of 
Miss  Harris  ?  A.  Yes,  sir. 

Q.  State  about  what  time — as  early  a  day  as  you  can  recollect — 
when  you  saw  that  pistol  in  her  possession.  A.  It  was  some  time 
last  fall;  I  cannot  tell  as  to  the  day  or  the  month. 

Q.  State  where  and  under  what  circumstances  you  saw  it.  A.  I 
asked  her  what  she  had  done  with  some  money  that  I  knew  she  had 
had.  She  did  not  tell  me,  but  said  she  had  bought  something.  A 

O  C5 

few  days  afterwards  she  showed  me  the  pistol,  and  told  me  that  was 
what  she  had  done  with  the  money.  I  asked  her  what  she  had 
bought  it  for>  She  said  she  was  not  the  only  lady  who  carried  a 


TRIAL  OF  MARY  HARRIS.  55 

pistol.  Shortly  afterwards  she  said  to  me  that  she  believed  Dr. 
Burroughs  and  his  brother  had  some  plot  against  her.  Whether  she 
said  it  in  reference  to  the  pistol  or  not,  I  do  not  know.  It  was  dur- 
ing that  same  day  she  told  me. 

Q.  State  what  she  said  about  that.  A.  I  asked  her  what  plot 
they  had  ?  She  said  it  was  to  pick  her  up  on  the  street  and  run 
away  with  her  where  she  would  never  be  seen. 

Q.  Did  you  ever  see  any  loose  cartridges  or  powder  in  her  trunk? 
A.  Yes,  sir. 

Q.  At  what  time  was  that  ?  A.  About  the  same  time  that  I  saw 
the  pistol.  I  said  to  her,  you  do  not  know  how  to  use  it,  what  did 
you  buy  it  for  ?  She  admitted  she  did  not  know  how  to  use  it; 
and  then  showed  me  these  cartridges  as  belonging  to  it. 

Q.  Did  you  ever  hear  of  her  practicing  with  it  in  any  way  at  all  ? 
A.  No,  sir.  I  do  not  think  she  knew  how  to  charge  it. 

Q.  Between  what  streets  is  No.  94  Quincy  street  ?  A.  I  think  it 
is  between  Monroe  street  and  Adams.  It  is  a  small,  very  narrow 
street — a  kind  of  alley. 

Q.  Did  you  or  not  make  inquiries  as  to  the  reputation  of  that 
house  ?  A.  I  did. 

Q.  What  is  its  general  reputation  ?     A.  Bad. 

Objected  to  by  the  District  Attorney,  and  objection  overruled. 

Q.  Did  you  communicate  to  Miss  Harris,  or  did  she  with  you 
ascertain  what  the  character  of  that  house  was?  A.  I  ascertained 
and  told  her.  I  told  her  that  I  was  informed  it  was  one  of  the 
worst  assignation  houses  in  Chicago. 

Cross-examination  : 

By  Mr.  WILSON.  Where  did  you  reside  before  you  went  to 
Chicago  ?  A.  In  Baltimore.  I  resided  there  nine  years. 

Q.   Where  did  you  reside  prior  to  that  time  ?    A.  In  Ireland. 

Q.   When  did  you  go  to  Chicago?     A.  In  March,  1863. 

Q.  What  members  of  your  family  went  with  you  ?  A.  One  sis- 
ter— Jane. 

Q.  Where  was  your  place  of  business  in  Chicago  ?  A.  No.  186 
Clark  street. 

Q.  Where  was  your  residence  ?  A.  I  boarded  on  Monroe  street. 
I  forget  the  number.  It  was  the  fourth  house  from  Clark  street. 

Q.  About  what  time  precisely  did  you  make  the  acquaintance  of 
Mary  Harris,  and  under  what  circumstances  ?  A.  I  met  her  in  that 
boarding-house  about  a  week  after  I  went  to  it;  and  I  went  to  it 
in  the  latter  part  of  March,  1863. 


56  MODERN  JURY  TRIALS. 

Q.  Who  introduced  you  to  her?  A.  The  lady  ox  «ih»  boarding- 
house. 

Q.  Had  you  ever  known  or  seen  her  before  that  time  T  A.  No, 
sir. 

Q.  What  was  the  name  of  the  lady  who  kept  the  boarding-honse  ? 
A.  Mrs.  Lacey. 

Q.  How  far  from  the  boarding  house  was  the  store?  A.  Not 
more  than  a  block. 

Q.  Who  were  her  friends  there?  A.  She  did  not  have  any 
friends  that  I  know  of,  other  than  the  few  acquaintances  she  formed 
in  the  boarding-house. 

Q.  What  books  and  newspapers  was  she  in  the  habit  of  reading  ? 
A.  She  did  not  read  much,  except  newspapers. 

Q.  What  newspapers  particularly?  A.  Well,  I  do  not  know 
that  she  read  any  in  particular.  She  read  any  she  got,  I  guess 

Q.  What  were  her  habits  as  to  attending  church  ?  A.  She 
attended  her  church  regularly. 

Q.  Did  you  attend  the  same  church  ?    A.  Yes,  sir. 

Q.  How  often  during  the  week  ?    A.  Every  Sunday. 

Q.  How  often  during  the  day?  A.  Once  or  twice  a  day;  some 
times  three  times. 

Q.  Did  you  ever  attend  on  week  days  ?    A.  Not  usually. 

Q.  Did  she  have  any  attendants — any  beaux,  any  admirers  ?  A 
No,  sir. 

Q.  Did  you  ever  know  of  her  going  out  into  society — to  parties  f 
A.  She  has  been  to  the  theatre  a  few  times;  that  is  all. 

Q.  Who  did  she  go  with  ?  A.  Some  of  her  friends  from  Bur- 
lington. 

Q.  Young  gentlemen  ?    A.  Yes,  sir. 

Q.  Who  were  they  ?  A.  I  have  heard  their  names — been  intro- 
duced to  them;  but  really  I  have  forgotten. 

Q.  How  many  times  do  you  suppose  she  went  to  the  theatre  ? 
A.  Only  five  or  six  times  a  year. 

Q.  Did  you  go  with  her  ?    A.  Sometimes  I  went  with  her. 

Q.  Did  you  ever,  during  that  time,  see  any  exhibitions  of  ill- 
temper  ?  A.  None  at  all. 

Q.  Did  you  ever  hear  any  impatient  or  hasty  remarks  during 
that  time  ?  A.  No,  sir. 

Q.  Did  you  ever  know  of  her  being  particularly  unwell  during 
that  time  ?  A.  No,  sir;  only  once  she  had  a  sore  throat. 

Q.  Have  you  heard  her  make  any  complaints  in  regard  to  her 
health  during  that  time?  A.  Yes,  sir;  a  little. 


TRIAL  OP  MARY  HARRIS.  67 

Q.  Was  there  any  difference  in  her  behavior  at  such  times  ?  A. 
No,  sir. 

Q.  Any  change  in  her  spirits  ?    A.  No,  sir. 

Q.  Had  you  during  that  time  heard  her  mention  the  name  of 
Mr.  Burroughs  ?  A.  Yes,  sir.  She  told  me  she  was  going  to  be 
married  to  him  in  July. 

Q.  When  did  she  first  tell  you  that?  A.  I  could  not  say  exactly; 
but  a  few  weeks  after  I  became  acquainted  with  her. 

Q.  How  often  did  she  repeat  it?  A.  I  do  not  know  how  often; 
but  a  great  many  times. 

Q.  What  else  did  she  say  to  you  about  him  ?  A.  Well,  I  cannot 
recall  all  she  said;  but  she  said  a  great  deal. 

Q.  Express  regard  for  him.     A.  Yes,  sir. 

Q.  How  frequently  was  he  mentioned  ?  Every  day  ?  A.  That  I 
could  not  say;  but  perhaps  sometimes  every  day,  and  sometimes 
two  or  three  times  a  week;  very  often,  anyhow. 

Q.  And  you  read  all  his  letters  that  she  received?  A.  I  read 
a  great  many  of  them.  Whether  I  read  them  all  or  not  I  do  not 
know. 

Q.  When  did  you  see  Mr.  Burroughs  ?  A.  I  saw  him  a  few 
days  after  he  came  to  the  boarding-house  and  called  on  her. 

Q.  For  how  long  a  time  did  you  see  him  ?  A.  He  remained 
about  an  hour. 

Q.  Were  you  present  during  the  whole  time  ?  A.  I  was  only 
present  five  or  ten  minutes. 

Q.  When  did  you  see  him  again?  A.  At  the  boarding-house, 
in  March  or  April. 

Q.  When  again  ?    A.  In  my  store. 

Q.  When  was  that?  A.  I  could  not  say  what  month  it  was 
when  I  first  saw  him  at  my  store,  or  what  day  of  the  month.  It 
was  sometime  during  the  summer. 

Q.  Who  did  he  call  to  see  ?    A.  Miss  Harris. 

Q.  Did  he  see  her?    A.  No,  sir;  she  was  not  in. 

Q.  When  did  you  next  see  him  ?  A.  In  my  store,  about  five  or 
six  weeks  before  he  was  married;  that  is,  before  I  saw  the  marriage 
published. 

Q.  When  did  you  see  the  notice  of  his  marriage  ?  A.  A  few 
days  after  it  was  published. 

Q.  Did  he  see  Miss  Harris  this  last  time  when  he  called  ?  A. 
Yes,  sir. 

Q.  Where  ?    B.  In  my  store. 

Q.  Were  you  present  during  the  whole  interview  ?  A.  No,  sir; 
but  I  was  in  view  all  the  time. 


£8  MODERN  JURY  TRIAIA 

Q.  Did  she  go  out  with  him  ?    A.  No,  sir. 
Q.  How  long  was  he  there  ?    A.  From  an  hour  to  an  hour  and 
a  half. 

Q.  In  the  front  part  of  the  store  ?    A.  Yes,  sir. 

Q.  When  did  you  see  him  again  ?    A.  I  did  not  see  him  again. 

As  a  sample  of  letters  read  in  evidence,  the  following  will  suffice: 

Letter  dated  Sunday,  June  11,  1859.  No  place  named  and  no 
signature.  Letter  addressed  to  "My  dear,  dear  Mollie."  He 
advises  her  to  be  more  careful  of  her  health,  and  gives  her  a  full 
history  of  his  pecuniary  matters  and  some  pecuniary  difficulties. 

Letter  dated  Monday,  June  26,  1859,  9  p.  m.  No  place  men- 
tioned and  no  signature,  but  ending  with,  "  Dearest  girl,  good-bye." 
The  letter  is  addressed  to  "  Dear,  dear  Mollie."  He  intimates  in 
this  letter  that  she  did  not  wish  to  be  addressed  as  "  little  Mollie," 
for  she  now  wore  long  dresses.  But  he  says  he  cannot  divest  him- 
self of  the  thought  that  she  is  still  the  "  little  Mollie "  who  sat 
upon  his  knee  and  twined  her  arms  about  his  neck,  or  who  sat 
beside  him,  and  about  whom  he  twined  his  arms  and  lifted  her  up, 
and  could  have  carried  the  precious  burden  to  Pai'is.  He  only 
expressed  the  fear  that  she  would  feel  too  big  to  sit  again  upon  his 
knee  and  kiss  him. 

Letters  dated  Thursday,  June  30,  1859  (no  place),  and  addressed 
"Dearest  girl;"  Sunday,  July  2,  1859,  and  addressed  "My  dear 
little  Mollie;"  Tuesday,  August  2,  1859,  and  addressed  to  "My 
darling  little  Mollie;"  Tuesday,  August  14,  and  addressed  to  "My 
dear,  dear  Mollie."  In  all  of  these  letters  the  writer  speaks  to  the 
prisoner  in  the  most  endearing  terms.  He  expresses  his  love  for 
her,  and  gives  her  very  good  advice.  He  speaks  of  going  to 
Pike's  Peak,  and  also  of  his  pecuniary  matters.  In  one  of  the 
letters  he  invites  her  to  meet  him  in  a  sort  of  surreptitious  manner 
at  Mount  Pleasant. 

The  following  letter  was  read  in  full,  and  is  published  as  giving 
a  fair  indication  of  the  letters  subsequently  written  to  Miss  Harris 
by  Burroughs  : 

"  MONDAY,  August  22,  1858. 

"  Ol  MY  DEAR  LITTLE  ROSEBUD: 
************ 

How  am  I  to  thank  you  for  such  a  favor  ?  O,  joyous  surprise! 
Glad  source  of  delirious  joy! 

Many  times  I  had  longed  for  your  picture,  and  let  my  imagination 
dwell  upon  the  receipt  of  it,  but  durst  not  ask  you  for  it,  for  rea- 
sons I  will  give  you  if  we  ever  meet — not  now;  but  it  is  the  m^e 


TRIAL  OF  MAKT  HARRIS.  69 

grateful,  coming  as  a  surprise  of  inexpressible  delight.  Really, 
Mollie,  as  I  returned  from  the  post  office  after  receiving  it,  I  felt 
so  light  I  could  with  difficulty  keep  the  ground;  I  could  scarcely 
avoid  flying.  I  wanted  to  button-hole  everybody  I  met,  and  show 
them  what  I  had  got;  and  it  required  all  the  sense  of  propriety  t 
could  command  to  keep  myself  from  doing  so. 

O!  that  beautiful  picture!  beautiful!  beautiful!  beautiful!  And 
my  beautiful!  beautiful  Mollie!  What  can  I  now  say  for  her?  T 
cannot  say — words  fail  me.  Could  I  see  her,  I  might,  perhaps, 
express  faintly  what  are  my  feelings,  as  reawakened  by  such  visible 
testimony  of  her  loveliness. 

O,  Mollie,  Mollie!  you  have  turned  my  dry,  sterile,  old  bachelor  <* 
heart  into  a  gushing  fountain  of  glad  emotion,  and  warm,  genial 
affection;  and  Mollie — dear,  darling  Mollie — is  the  source  and  end 
of  all.  Would  I  had  a  hundred  Pike's  Peak's  fortunes  to  lay  at 
her  feet,  and  the  affection  of  a  hundred  hearts  to  lavish  upon  hej . 
If  "  another  Mollie "  were  to  contest  the  claim  te  my  love,  she 
would  stand  but  a  poor  chance  now,  if  not  before.  When  you  were 
remarking  concerning  the  change  (improvement)  th»t  had  taken 
place  in  your  personal  appearance,  were  you  trying  to  make  me 
understand  that  you  had  added  to  your  already  redundant  stock  of 
beauty?  I  did  not  fully  take  the  hint  then;  I  understand  now. 
Nature  has  surpassed  herself  in  bestowing  new  charms  when  the 
measure  was  already  full,  running  over,  and  Mollie  herself  is  taken 
by  surprise  at  her  own  new  excellencies.  I  understand  it  all  now, 
and  a  most  effective  way  have  you  adopted  to  bring  the  fact  to  my 
comprehension,  and  as  modest  and  winning  as  effective.  Your 
beautiful  picture!  I  have  to  look  at  it  the  last  thing  before  I  put 
out  the  light  at  bed-time,  and  the  first  thing  in  the  morning. 

And  many  times  during  the  day  do  I  look  again  and  again  at 
this  beautiful  shadow  of  a  more  beautiful  substance,  and  each  time 
draws  forth  some  fresh  exclamation  of  swelling  admiration. 

Do  not,  my  dear  Mollie,  let  that  accursed  blotch  on  your  neck  be 
left  to  mar  such  a  beautiful  person  as  yours.  You  have  neglected 
it  already  too  long.  Do  so  no  more. 

Perhaps,  dear  girl,  you  will  think  me  extravagant  and  excessive 
at  my  expressions  of  delight  at  the  receipt  of  your  picture;  perhaps 
I  am  fulsome,  nauseating  even.  But  remember  the  circumstances. 
A  man  would  justly  be  thought  a  fool,  who,  going  to  the  town- 
pump,  would  clap  his  hands  and  dance  with  wild  exclamations  of 
delight  at  the  sight  of  water;  but  on  the  desert,  where  water  had 
not  been  seen  for  many  long,  weary  days,  he  would  be  thought 
perfectly  sound,  and  all  would  rejoice  with  him.  Were  I  with  you, 


60  MODERN  JURY  TRIALS. 

enjoying  the  richer  favor  of  your  presence,  though  I  would  receive 
your  picture  as  a  precious  treasure,  yet  I  would  not  go  quite  crazy 
over  it,  but  would  seek  to  exhibit  good  common  sense.  As  it  is, 
away  off  in  the  wilderness,  among  Arabs,  hideous  to  behold,  and 
worse  to  mingle  with,  I  am  like  the  man  in  the  desert  at  the  sight 
of  water.  So,  under  the  circumstances,  I  hope  you  will  excuse  me, 
dearest,  if  I  do  plaster  it  on  rather  thick.  I  would  not  resort  to 
gross  flattery  of  your  personal  appearance,  though  your  charms 
were  those  o*  Venus  (and  I  do  not  think  them  short  of  it),  for  1 
possess  too  much  of  sincere  regard  for  your  best  interests  to  turn 
flatterer,  and  injure  you  with  extravagant  praise.  1  would  rather 
tell  you  of  your  faults,  and  show  forth  my  regard  and  appreciation 
of  you  by  the  unmistakable  evidence  of  duty  faithfully  performed 

"  ^aithful  are  the  wounds  of  a  friend,  but  the  kisses  of  an  enemy 
are  deceitful." 

If  I  speak  warmly  in  your  praise,  it  is  but  the  free  gushing  forth 
of  uncontrolled  feelings,  and  you  know  by  experience  may  ring  the 
din  of  hated  chiding  in  your  ears,  and  make  you  wish — O!  so  much! 
it  might  but  cease.  But  when  I  chide  you,  Mollie,  I  would  rather 
take  you  in  my  arms,  and  soften  the  harsh  accents  by  the  soothing 
caresses  of  true,  kind  and  warm  affection;  for  I  am  not  a  tyrant 
nor  a  bear  in  disposition;  neither  would  I  be  the  fitful  cat,  that 
utters  her  fondness  in  tones  of  winning  tenderness  at  one  moment, 
and  plants  her  claws  to  the  quick  into  her  darling  pets  the  next. 
But  I  would  be  as  I  have  professed,  your  true  friend;  in  advance 
asking  pardon  for  his  many  failings.  Will  you  believe  me,  Mollie  ? 
and  will  you  understand  me,  as  I  make  my  imperfect  efforts  to 

express  my  sentiments;  while  I  protest  I  could  tell  you  a sight 

better  if  I  could  see  you  !  And,  my  dear,  dear  Mollie,  shall  I  not 
see  you  at  Ottumwa  the  first  of  the  month  ?  Dear  girl,  I  want  to 
urge  you  to  come,  if  at  all  practicable,  and  don't  let  small  consider- 
ations prevent  you,  and  come  in  such  a  way  as  not  to  be  tied  up  to 
somebody  else,  so  to  prevent  our  being  together  most  of  the  time, 
mind  you. 

I  broke  my  promise,  and  did  not  write  "  Sunday,"  but  it  was  not 
because  I  had  not  intended  to;  but  because  I  could  not  get  a 
minute  to  myself.  To-day  you  will  excuse  me.  A.  J.  B. 

Hugh  McCullough,  sworn — I  saw  Miss  Harris  in  one  of  the 
rooms  of  the  Treasury  building,  upon  the  floor  where  the  body  of 
Mr.  Burroughs  was  lying.  I  think  it  is  the  first  room  on  the  left 
as  you  enter  the  eastern  entrance.  I  think  a  police  officer  was  in 
there  at  the  time.  It  is  possible  he  might  have  left  the  room,  but 


TRIAL  OF  MARY  HARRIS.  61 

my  impression  is  that  he  remained  all  the  time.  He  was  certainly 
there  most  of  the  time.  The  conversation  on  the  part  of  Misa 
Harris  was  chiefly  in  exclamations.  I  put  but  few  questions  to  her. 
I  listened  to  her  rather  than  carried  on  the  conversation.  I  think 
the  first  question  she  put  to  me  was,  "  Is  he  dead  !"  At  that  time, 
my  impression  is,  that  Mr.  Burroughs  was  still  breathing.  I  went 
out,  and  returned  to  her  soon  after  with  the  information  that  he 
was  dead.  Miss  Harris  was  much  excited,  and  uttered  such  excla- 
mations as — "  Why  did  I  do  it  ?  Why  did  I  do  it  ?"  I  put  some 
questions  to  her  in  regard  to  her  acquaintance  with  Mr.  Burroughs. 
In  the  course  of  the  conversation,  she  informed  me  that  she  had 
known  him  for  many  years;  had  been  engaged  to  him.  I  asked 
her  if  Mr  Burroughs  had  done  her  any  other  injury  than  the  vio- 
lation of  his  engagement.  She  exclaimed,  with  a  great  deal  of 
emphasis,  that  he  had  not.  I  put  the  question  to  her,  "  Are  you  a 
virtuous  girl  ?"  "  Yes,  as  God  is  my  witness,"  was  her  answer. 
That  is  about  the  amount  of  the  conversation  that  took  place.  She 
also  said  to  me  that  she  had  come  up  to  Washington  for  the  pur- 
pose of  prosecuting  Mr.  Burroughs  for  a  breach  of  promise  of 
marriage.  I  saw  the  pistol.  It  was  not  more  than  fifteen  minutes 
from  the  time  I  first  saw  her  in  that  office  till  she  left  with  the 
officer.  Perhaps  eight  or  ten  minutes  after  Mr.  Burroughs  died,  I 
thought  it  was  best  she  should  leave,  and  she  herself  seemed  desir- 
ous to  do  so.  I  accompanied  her  to  the  carriage,  and  she  was  taken 
by  the  police  officer  to  prison.  I  engaged  the  carriage  for  the  pur- 
pose of  having  her  taken  to  the  prison. 

Cross-examination : 

I  had  never  known  or  heard  anything  of  her  before.  I  knew  Mr. 
Burroughs  after  he  came  to  Washington.  He  came  to  my  bureau — 
I  was  then  Comptroller  of  the  Currency — in  the  spring  of  1863,  and 
applied  for  a  clerkship.  I  don't  recollect  when  he  became  a  clerk, 
but  I  think  it  was  in  the  latter  part  of  that  year.  Had  no  particu- 
lar personal  social  relations  with  him,  though  I  knew  him  very 
well,  but  my  relations  with  him  were  not  more  intimate  than  with 
the  balance  of  the  clerks.  Miss  Harris,  while  making  the  ejacula- 
tions I  have  referred  to,  answering  the  questions  I  put  to  her,  etc., 
was  deeply  excited,  and  seemed  to  be  in  despair — in  a  frenzy.  I 
think,  as  I  came  in,  she  dropped  on  her  knees.  I  know  she  put  her 
hands  upon  my  coat  with  great  energy,  as  she  asked  the  question 
regarding  Mr.  Burroughs.  I  do  not  recollect  the  character  of  the 
expression  of  her  face,  except  that  she  was  deeply  moved.  I  don't 
think  she  shed  any  tears.  It  seemed  to  me  her  agony  was  too  great 


62  MODERN  JURY  TRIAL& 

for  tears.  I  don't  think  she  was  flushed,  but  pale,  or  rather,  pallid. 
I  did  not  take  notice  of  her  eye,  but  her  whole  manner  was  striking 
and  impressive  in  the  extreme.  I  recollect  I  fixed  her  attention  for 
a  moment,  and  put  questions  to  her;  she  answered  as  if  she  qompre- 
hended  them — answering  clearly  and  coherently;  but  immediately 
after  giving  the  answer,  she  would  return  to  exclamations,  pacing 
the  room,  and  exhibited  every  indication  of  being  perfectly  over- 
whelmed. 

Q.  Describe  to  the  jury  her  manner  when  she  said  she  was  a  vir- 
tuous girl.  A.  That  is  rather  difficult,  as  I  am  not  an  actor.  I  rec- 
ollect I  told  my  wife  I  could  now  realize  the  difference  between 
real  grief  and  honor,  and  what  we  had  been  in  the  habit  of  seeing 
upon  the  stage.  I  cannot  exactly  describe  her  manner.  She  was  much 
moved,  ejaculating,  "  Why  did  I  do  it? — oh,  how  I  loved  him;  why 
did  I  do  it  ?"  and  such  like.  I  never  witnessed  an  instance  of  greater 
excitement  from  moral  or  mental  affection  of  the  mind.  This  was 
a  new  case  to  me,  and  a  particularly  interesting  one.  The  next 
morning,  I  think  it  was,  I  took  Mrs.  McCullough  down  to  the  jail 
with  me,  and,  with  Mr.  Beale,  the  warden,  went  to  her  cell  to  see 
if  she  needed  any  aid.  Mrs.  McCullough  felt  interested  in  her* 
We  found  a  gentleman  from  her  own  State  had  taken  charge  of  her 
wants,  and  we  therefore  felt  that  there  was  no  further  necessity 
for  interference  on  our  part,  or  for  any  proffer  of  assistance  to  her. 
I  found  Miss  Harris  much  in  the  same  condition  in  which  she  was 
at  the  interview  of  the  afternoon  before.  She  was  pacing  the  room 
as  upon  that  occasion,  and  her  exclamations  were  much  of  the  same 
character. 

Q.  You  never  saw  her  after  that  tension  of  mind  had  passed  off  ? 
A.  She  was  still  excited  at  my  second  interview  with  her,  but  not 
so  much  so. 

Q.  State  whether,  from  what  you  have  stated,  you  were  able  to 
form  any  judgment  as  to  the  condition  of  her  mind,  and  whether 
she  was  then  capable  of  acting  as  a  reasonable  and  responsible 
being  ? 

Objected  to  by  the  counsel  for  prosecution.  Counsel  desiring  a 
few  moments  to  look  up  certain  authorities  on  the  subject,  the 
argument  was  deferred  until  after  the  examination  of  the  next  wit- 
ness. 

AN  ATTOBNKY  WHO   SWEARS   WELL* 

Joseph  H.  Bradley,  sworn: 

By  JUDGE  HUGHES— Please  state  to  the  jury  how  long  yon  have 
known  Miss  Harris,  and  whether  your  acquaintance  since  you  have 


TRIAL  OP  MARY  HARRIS.  63 

known  her  has  been  intimate  or  not.  A.  I  saw  Miss  Harris,  I 
think,  the  third  day  after  her  imprisonment.  I  was  applied  to  take 
charge  of  her  case,  and  declined  on  the  day  after  her  arrest,  and 
persisted  in  that  declination  until  I  saw  her;  and  then  I  undertook 
her  case  to  the  extent  only  that  I  should  see  proper  preparation 
made  for  a  defense,  although  I  would  not  undertake  to  try  the  case 
in  court.  Subsequently  I  became  her  counsel.  For  the  first  month 
or  six  weeks  I  saw  her  very  seldom,  and  until  the  letter  part  of 
February,  when  I  went  with  Mr.  Phelps  to  see  her  and  found  Mrs. 
Phelps  there.  I  thus  became  acquainted  with  her.  I  do  not  think 
that  up  to  the  latter  part  of  February  I  had  been  to  see  her  but 
two  or  three  times.  I  have  made  one  species  of  insanity  particu- 
larly a  matter  of  study,  and  that  induced  me  to  attend  more 
especially  to  the  condition  of  Miss  Harris;  yet  I  did  not  see  her 
until  the  latter  part  of  March,  for  I  was  very  much  engaged  in 
court.  Between  the  twentieth  and  thirtieth,  circumstances  occur- 
ring at  that  time,  called  nay  attention  more  particularly  to  her,  and 
after  that  time  I  did  not  see  her  frequently  until  the  twenty-fifth  of 
April,  if  my  memory  serves  me  right.  In  the  meantime  I  had 
made  several  visits,  and  she  had  had  a  very  violent  attack  of  erysip- 
elas in  the  head.  During  this  attack,  I  having  myself  suffered 
more  than  I  knew  anyone  else  to  suffer  from  the  same  cause,  saw 
her  repeatedly.  I  think  I  saw  her  three  days  in  succession  during 
that  attack. 

Q.  Please  proceed  now  and  state  any  facts  tending  to  illustrate 
the  condition  of  Miss  Harris'  mind  bearing  upon  the  question  of 
insanity;  and  if  you  have  kept  any  notes,  just  give  the  whole 
account  in  a  narrative  form. 

Mr.  Bradley  then  read  from  his  notes  as  follows: 
My  attention  was  directed  to  observations  of  the  facts  indicating 
the  condition  of  the  mind  of  Miss  Harris  at  my  first  interview  with 
her,  when  she  was  under  such  excitement  as  to  attract  the  attention 
of  every  one  who  saw  her.  And  after  that,  and  looking  to  the 
preparation  of  her  defense,  I  saw  her  with  Dr.  Nichols,  and  made 
repeated  visits  to  her,  mainly  to  see  whether  she  recollected  the 
incidents  of  her  life,  and  talked  rationally  about  them.  Various 
things  occurred  sufficient  only  to  keep  my  attention  aroused  until 
some  time  in  the  last  part  of  March,  after  the  twenty-fifth,  and 
before  the  first  of  April,  when  on  calling,  I  found  her  in  some 
excitement,  which  was  exhibited  more  in  her  evident  desire  to  talk 
about  Burroughs  than  I  had  observed  before.  Some  one  had  sent 
to  her  a  newspaper,  or  piece  of  a  newspaper,  containing  an  account 
of  a  seance  or  session  of  biologists,  in  which  it  was  reported  that 


64  MODERN  JUB/  TRIALS. 

the  spirit  of  Burroughs  had  been  evoked  and  appeared,  and  the 
conversation  between  the  medium  and  that  spirit  was  given.  She 
showed  it  to  me;  commented  upon  it;  asked  me  if  I  had  faith  in  or 
even  doubts  about  that  science. 

She  was  nervous  and  excited.  I  felt  her  pulse.  It  was  over  110. 
The  top  of  her  head  was  so  warm  as  to  be  unpleasant,  and  yet  her 
hands  were  cold.  The  pupil  of  the  eye  dilated  so  as  to  cover  the 
iris  very  nearly,  leaving  only  a  band,  as  it  were,  surrounding  it. 
She  talked  of  Burroughs  or  his  family — his  brother,  I  should  say, 
rather — and  his  (Burroughs')  wife,  during  the  greater  part  of  this 
interview,  and  that  with  a  manner  showing  no  consciousness  of 
having  done  wrong  to  any  one  but  his  wife. 

Mr.  and  Mrs.  Phelps,  of  Iowa,  who  knew  her  well,  were  here  in 
the  latter  part  of  February  or  first  of  March.  He  was  attending 
to,  or  rather  waiting  for,  some  case  in  the  Supreme  Court,  and  I 
visited  her  with  him,  and  found  Mrs.  Phelps  there.  Of  course,  we — 
Mr.  Phelps  and  I — talked  freely  of  the  matter;  and  perhaps  what 
he  said  caused  me  to  notice  more  accurately  her  manner,  appear- 
ance and  conversation. 

I  remember  but  one  thing  of  any  particular  note.  While  we,  all 
four  of  us,  were  talking  quite  pleasantly  about  some  incident,  M>> 
Harris  suddenly  broke  in  on  what  we  were  talking  about  with  some 
matter  wholly  irrelevant,  and  began  after  a  moment  to  relate  some- 
thing to  us,  or  rather  to  Mrs.  Phelps  in  particular,  when  the  latter 

said,  "Yes,  Mary,  you  told  me  about  that  a  little  while  ago." 
*  *  *  *  *  *  *  * 

He  continued  reading  notes  at  length: 

I  sat  down,  leaving  her  standing.  She  advanced  rapidly  towards 
me,  wringing  and  twisting  her  handkerchief,  and  saying,  almost 
fiercely,  "  I  am  not  going  to  stay  here  any  longer,  Mr.  Bradley.  I 
am  going  out — I  am.  I  won't  stay.  I  want  you  to  take  me  out. 
Mr.  Bradley." 

I  replied:  "Yes,  Miss  Mary,  that's  all  right;  I  don't  wonder  at 
it.  You  have  had  a  long  and  hard  time  of  it,  and  I  would  like  to 
get  you  out." 

"  Then  take  me  out — take  me  out  now.  I  won't  stay  here  a 
minute." 

"  Well,  wait  a  minute,  till  we  pack  up  your  things." 

"I  don't  care  about  the  things;  I  am  going  now." 

I  said:  "  But  look  at  those  bars,  and  " — 

" Bars — bars,"  she  said,  "  what  do  I  care  for  bars?  Do  you  think 
they  could  keep  me  ?  Haven't  I  a  will,  and  what  are  bars  then  ?" 

But,  I  said,  "I  could  not  squeeze  you  through  them;  and  the 


TRIAL  OF  MARY  HARRIS.  65 

only  way  will  be  to  put  you  in  my  pocket,  and  so  pass  through 
the  guards.  We  must  wait,  and  make  no  noise  to  arouse  their 
suspicion.  Sit  down  quietly  for  a  little  while,  and  tell  me  all  about 
it."  During  this  whole  time  (and  more  passed  between  us,  much 
of  which  I  have  not  noted,  and  do  not  now  recall),  she  moved  rap- 
idly or  stopped  suddenly  for  an  instant,  yet  all  the  time  nervously 
twisting  her  handkerchief.  She  now  took  a  seat  by  me.  I  felt  her 
pulse;  it  was  about  one  hundred  and  twenty.  I  tried  to  catch  a 
look  into  her  eyes;  the  pupils  were  dilated  as  before;  her  hair  was 
deranged.  I  arose  after  a  minute,  and  said,  "  Let  me  apply  that 
bay  rum  and  water."  Took  her  handkerchief,  wet  it  with  the  mix- 
ture, applied  to  the  temples.  Her  forehead  was  as  cold  as  marble. 
The  top  of  her  head,  back  of  the  main  suture,  was  so  hot  as  to  be 
uncomfortable  to  the  hand.  I  wet  the  handkerchief  and  laid  it  on 
that  part  of  her  head.  She  sat  as  still  and  motionless  from  the 
time  I  arose  till  I  had  done  this,  as  though  she  were  a  statue. 

I  then  sat  down  by  her,  took  her  hand,  and  spoke  gently  to  her. 
I  said,  "Now  tell  us  all  about  it;  what  has  happened?"  Her  eyes 
were  fixed,  as  I  had  observed  them  before.  She  glanced  at  me  and 
ai'ound  the  room  rapidly,  and  said  in  a  low  tone  (she  had  previously 
spoken  with  great  excitement),  "  Mr.  Bradley,  I  can't  stay  here;  I 
can't  sleep;  I  have  not  slept  for  two  weeks;  as  soon  as  I  begin  to 
close  my  eyes  I  am  roused  up;  the  cry  of  murder  is  ringing  in  my 
ears;  it  comes  from  the  passage;  it  is  in  the  room,  with  most  hor- 
rid shrieks  of  pain,  cursing,  and  dreadful  language;  and  overhead 
a  crowd  of  men  are  stamping  and  shouting  and  yelling;  and  all 
around  me  are  the  most  dreadful  noises.  I  can't  stay  here;  I  won't 
stay  another  night.  Let  them  take  me  out  and  hang  me;  that's  all 
they  can  do.  Let  them  do  it  now."  By  this  time  she  had  become 
greatly  excited.  Her  pulse,  which  had  fallen  considerably,  had 
risen  again.  She  attempted  to  rise,  but  I  restrained  her,  and  said, 
"  Sit  still;  wait  a  moment;  you  haven't  told  me  all  yet;  I  must 
know  all,  Mary,  before  I  can  advise  you.  You  know  and  believe  I 
am  your  friend;  that  I  intend  to  take  you  out."  She  sat  still 
looked  at  me  for  a  moment,  and  in  a  most  plaintive  voice  said, 
"  Mr.  Bradley,  do  you  think  I  am  a  very  bad  girl  ?  I  have  prayed 
to  God  to  forgive  me.  I  do  believe  he  has  forgiven  me;  but 
indeed  I  never  meant  to  do  any  human  being  any  harm.  Do  you 
think  Mrs.  Burroughs  hates  me  ?" 

I  tried  to  soothe  her,  and,  falling  into  her  own  vein,  by  degrees 

the  excitement  subsided,  a  tear  welled  up  and  filled  her  eye,  and 

hung  on  the  lid.     I  wiped  it  off  with  my  own  handkerchief.     She 

started  immediately,  and  said,  "No,  no!  not  so;  let  me  get  another 

5 


66  MODERN  JURY  TRIAL& 

handkerchief."  That  was  followed  by  a  choking  sob,  the  tears 
began  to  flow  freely,  and  she  was  relieved  for  the  time.  We  talked 
sometime  about  indifferent  matters,  when  again  her  face  became 
clouded  and  gradually  fixed,  and  her  eyes  settled  with  a  firm  and 
fixed  look  into  vacancy;  the  pupils  dilated  as  before;  her  figure  as 
rigid  as  her  face.  I  spoke  to  her,  but  had  no  reply.  Presently  she 
said,  "Yes,  I  loved  him;  oh!  how  I  loved  him!  and  how  she  must 
hate  me.  I  don't  like  to  be  hated;  I  never  harmed  anybody;  it's 
me  that  was  hurt,  and  they  t61d  lies  about  me."  And  then  she 
shuddered  and  sighed  again.  I  said,  "She  does  not  hate  you." 
She  turned  to  me  the  saddest  face  I  ever  looked  on  and  said, 
"How  do  you  know;  you  do  not  know  her;  you  did  not  know  him. 
I  knew  him  for  seven  years,  and  he  loved  me;  I  know  he  did;  and 
he  loves  me  now.  He  don't  love  her  as  he  did  me.  He  has  love«i 
me  ever  since  I  was  a  little  child. 

It  will  be  noticed  that  Mr.  Bradley  skillfully  keeps  his  strong 
points  often  before  the  jury. 

Mrs.  E.  A.  Flemming,  sworn: 

By  Mr.  WILSON — I  reside  at  No.  142  Lexington  street,  Balti- 
more. My  acquaintance  with  Miss  Harris  was  on  the  sixth  of  Jan- 
uary last.  She  came  to  my  house  to  board.  She  said  her  business 
was  to  go  to  Washington;  that  she  was  not  very  well,  and  she  was 
stopping  in  Baltimore  for  she  did  not  know  how  long.  Her  object 
in  going  to  Washington,  she  said,  was  to  collect  money  for  the 
Misses  Devlin — the  ladies  by  whom  she  was  employed.  That  was 
what  she  told  me  the  first  evening  she  came  there.  Miss  Devlin 
used  to  do  business  in  Baltimore,  before  going  to  Chicago.  The 
prisoner  remained  at  our  house  until  the  thirtieth  day  of  January, 
the  day  she  came  to  Washington. 

Q.  State  what  she  said  with  regard  to  her  expenses. 

Objected  to  by  counsel  for  the  defense.  Withdrawn  for  the  time 
being. 

Q.  State  what  her  habits  were  while  visiting  you.  Whether  or 
not  you  know  from  her  own  statement,  of  her  frequently  visiting 
places  of  amusement;  and,  if  so,  state  with  whom  ?  A.  No,  sir;  she 
did  not  visit  any  place  particularly.  Well,  she  used  to  go  out 
occasionally  to  evening  entertainments. 

Q.  In  whose  society  ?  A.  That  of  Mr.  Devlin,  brother  of  the 
lady  with  whom  she  was  engaged.  He  was  the  only  gentleman 
she  ever  went  out  with. 

Q.  State  what  she  said  subsequently  to  the  day  you  have  men 


TRIAL  OP  MART  HARRI8.  67 

tioned  regarding  her  visit  to  Washington.  A.  She  said  she  intended 
to  come  down  and  sue  an  old  lover  for  a  breach  of  promise.  That 
she  had  been  engaged  to  him  for  seven  years,  and  that  he  had  mar- 
ried another  young  lady,  but  had  corresponded  with  her  up  to 
within  a  month  of  his  marriage.  She  thought  what  induced  him 
to  marry  this  lady  in  Chicago  was  the  fact  of  her  having  money. 
Her  object  in  instituting  a  suit  she  said  was  merely  to  clear  herself 
and  let  the  world  see  that  she  was  a  virtuous  girl. 

Q.  Did  she  assign  any  other  reason  for  bringing  this  suit  ?  A. 
Well,  she  said  something  about  two  anonymous  letters  that  she  had 
received,  signed  Greenwood. 

Q.  Did  she  say  anything  further  about  the  lady  he  had  married  ? 
A.  She  merely  said  that  the  father  of  this  young  lady  was  very 
wealthy,  and  she  had  understood  and  believed  that  Mr.  Burroughs 
loved  her,  but  married  the  other  one  because  she  was  rich.  She 
always  held  him,  Mr.  Burroughs,  in  very  high  estimation — always 
speaking  very  well  of  him. 

Q.  State  what  she  said  in  regard  to  the  delicacy,  the  modesty,  or 
propriety  of  Mr.  Burrough's  treatment  of  her  ? 

Objected  to  by  counsel  for  the  defense.  Objection  overruled 
and  witness  directed  to  answer  the  questions. 

A.  She  said  that  she  had  always  received  the  treatment  of  a 
father  from  him,  and  looked  up  to  him  as  such,  putting  the  utmost 
confidence  in  him.  He  had  never  wronged  her,  she  said. 

Q.  State  what  she  said  in  regard  to  being  still  in  the  employment 
of  the  Misses  Devlin  and  as  to  the  payment  of  her  expenses  by 
them? 

Objected  to  by  counsel  for  the  defense.     Objection  sustained. 

Q.  Will  you  state  whether  you  observed  on  the  day  the  prisoner 
left  Baltimore,  anything  remarkable  in  her  deportment  ?  A.  I  do 
not  know.  I  did  the  evening  previous  to  her  coming  to  Washing- 
ton. The  Rev.  Mr.  Dudley  was  at  the  house,  and  while  he  was 
playing  a  hymn  on  the  piano  in  the  parlor,  she  got  up,  picked  up 
one  of  the  ornaments  in  the  parlor,  and  went  »ound  to  take  up  a 
collection.  I  thought  that  very  strange  conduct. 

Q.  Did  you  observe  that  she  was  at  that  time  unwell,  or  com- 
plained of  any  disease,  and  if  so,  state  what  ?  A.  Yes,  sir.  She 
complained  very  much  of  her  throat  and  complained  of  being  very 
weak.  She  had  very  little  appetite. 

Q.  Did  you  observe  anything  else  that  was  remarkable  in  her 
conduct?  A.  Yes,  sir.  Sometimes  she  would  be  sitting  alone, 
apparently  engaged  in  deep  thought,  and  then  she  would  get  up 
and  all  at  once  commence  to  sing  a  love  song — 


68  MODERN  JURY  TRIALS. 

"First  she  loved  him  as  a  brother, 
And  he  doubted  her  when  her  love  was  stronger." 

Then  she  would  come  to  where  I  was,  and  appear  to  be  in  very 
good  humor. 

Cross-examination  : 

By  Mr.  BBADLEY — I  went  to  the  cars  with  Miss  Harris  and  gave 
her  my  ticket.  She  was  to  return  that  evening.  We  were  to  go 
to  a  lecture  together. 

DEOPS   A  BAD   WITNESS   QUICKLY.      AN   EXCELLENT   BULB. 

Dr.  John  Frederick  May,  sworn: 

By  Mr.  CABBINGTON — Q.  1.  You  are  known  as  a  physician  who 
has  been  practicing  in  this  city  for  a  great  many  years.  I  desire 
to  have  your  opinion  upon  a  hypothetical  case,  which  I  will  state, 
It  is  as  follows: 

In  the  case  of  a  young  woman  of  a  highly  nervous  organization 
and  vivacious  temperament,  and  who  has  suffered  from  a  disap- 
pointment in  love,  there  is  observed  at  intervals  of  greater  or  less 
regularity,  at  monthly  periods,  the  following  symptoms:  irregular 
and  insufficient  sleep,  depression  of  the  spirits,  and  melancholy, 
outbreaks  of  violence  of  the  following  character,  attacking  a  friend 
with  whom  there  had  been  no  previous  quarrel,  with  a  broom,  and 
on  another  occasion  with  a  carving  knife,  throwing  a  pin  cushion 
at  a  customer  in  the  store  in  which  she  was  employed,  the  cutting 
or  attempted  destruction  of  a  piece  of  fine  needle  work  belonging 
to  a  friend,  awaking  at  an  early  hour  in  the  morning  and  saying  to 
a  room  mate  that  she  must  leave  her,  and  was  going  to  walk  upon 
the  lake  shore,  insensibility  to  cold,  and  shedding  tears.  State  how 
frequently  you  have  noticed  in  your  practice  such  symptoms  in 
cases  of  hysteria,  or  dysmenorrhoea,  and  whether  upon  such  symp- 
toms you  would  infer  the  insanity  of  the  patient  ? 

A.  It  is  impossible  for  me  to  say  how  frequently  I  have  seen 
some  of  the  symptoms  enumerated.  I  have  in  cases  of  hysteria 
seen  some  symptoms  like  these,  and  others  have  been  absent  in 
guch  cases.  Dysmenorrhoea  often  occurs  without  being  accompa- 
nied by  any  such  symptoms  at  all — without  any  symptom  that  has 
been  enumerated;  but  as  far  as  answering  such  an  abstract  ques- 
tion as  that,  I  should  say  that  if  those  symptoms  occurred  at  stated 
periods,  the  periods  mentioned  here,  that  they  were  symptoms  of 
nervous  excitement,  dependent  upon  uterine  irritability.  I  could 


TRIAL  OF  MART  HARRIS.  69 

not  call  that  a  case  of  insanity  in  the  general  acceptation  of  the 

terra  "insanity." 

Q.  2.  I  will  now  ask  you  this  question.  A  young  woman  of  a 
highly  nervous  organization  and  vivacious  temperament,  having 
exhibited  the  symptoms  stated  in  the  previous  question,  and  suffer- 
ing from  dysmenorrhcea,  having  expressed  during  a  period  of  insan- 
ity, armed  with  a  pistol,  goes  in  the  day  time  to  a  public  building, 
inquires  at  the  door  for  a  person,  whose  name  she  gives,  and  con- 
cerning whom,  while  in  a  condition  of  sanity  she  expressed. anxiety, 
goes  to  the  door  of  the  room  of  that  person,  and  sees  him,  then 
conceals  herself,  and  as  the  person  passes  her,  without  notice,  aims 
and  fires  the  pistol  at  him,  inflicting  a  mortal  wound,  and  then 
cocking  her  pistol  fires  at  him  a  second  time. 

State  whether  the  fact  that  after  the  commission  of  such  a  homi- 
cide, she  did  not  make  any  attempt  to  escape,  and  no  effort  to  pal- 
liate the  crime  or  to  allege  a  provocation,  but  expressed  sorrow  and 
great  distress,  and  exhibited  great  emotion,  and  the  further  fact 
that  the  party  did  not  avail  herself  of  the  first  opportunity  to  com- 
mit the  act,  would,  either  of  themselves,  or  in  connection  with  the 
symptoms  previously  stated,  indicate  the  insanity  of  the  patient, 
whether,  in  your  opinion,  such  facts  and  symptoms  could  be 
accounted  for  upon  the  supposition  that  the  act  proceeded  from  an 
insane  impulse,  than  upon  the  supposition  that  the  party,  at  the 
time  of  the  commission  of  the  act,  was  sane,  and  was  compelled 
thereto  by  any  other  motive,  not  insanity. 

Q.  3.  State  whether  the  fact  that  the  person  did  not  avail  herself 
of  the  first  opportunity  to  commit  the  act,  but  after  the  homicide, 
attempted  to  escape,  made  an  effort  to  palliate  the  offense,  and 
alleged  a  provocation;  and  although  expressing  great  sorrow  and 
evincing  great  emotion,  declared  that  the  person  deceased  had 
injured  and  ruined  her,  and  that  she  was  determined  to  have 
revenge,  if  it  cost  her  life,  would  by  themselves,  or  in  connection 
with  the  facts  and  symptoms  previously  stated,  indicate  the  insan- 
ity of  the  patient;  and  whether  the  act  or  homicide  could  be  better 
accounted  for  upon  the  supposition  that  it  proceeded  from  an  insane 
impulse,  than  upon  the  supposition  that,  at  the  time  of  committing 
the  act,  the  person  was  sane,  and  was  compelled  thereto  by  any 
other  motive  ? 

MR.  VOOKHBES  objected  to  the  witness  answering  the  question. 
He  had  a  great  deal  of  respect  for  the  witness,  and  a  great  regard 
for  his  experience  as  an  expert;  but  before  he  was  a  competent  wit- 
ness it  should  be  ascertained  whether  or  not  he  had  made  that 


70  MODERN  JURY  TRIALS. 

branch  of  study  a  specialty.  It  would  have  been  necessary  for 
witness  to  have  heard  all  of  the  evidence  before  he  could  testify 
upon  abstract  cases.  This  objection  was  not  made  from  a  want  of 
confidence  in  the  ability  of  the  witness,  but  because  there  are  cer- 
tain rules  which  must  be  obeyed,  and  which  require  that  a  profes- 
sional man  must  make  a  study  of  the  subject  upon  which  he 
professes  to  give  an  opinion. 

Mr.  CAEBIXGTON  said  the  opinion  of  Dr.  Nichols  was  based  upon 
certain  hypothetical  causes.  His  testimony  is  all  predicated  on  cer- 
tain causes,  such  as  that  of  a  party  who  had  been  suffering  from 
disease,  etc.;  and  Dr.  Nichols'  opinion  was  founded  upon  the 
assumption  of  two  causes,  one  of  which  was  moral  and  the  other 
physical,  and  the  prosecution  desired  to  interrogate  the  witness  rel- 
ative to  causes  that  might  result  from  the  physical  condition  of  a 
party  suffering  under  such  causes  as  were  stated  in  the  question. 

Mr.  WILSON  argued  that  as  Dr.  Nichols  had  stated  the  various 
causes  upon  which  his  opinion  was  based,  and  as  the  questions 
selected  were  those  pertaining  to  bodily  disease,  it  was  perfectly 
proper  for  the  witness  to  say  whether,  from  his  observation  of  sim- 
ilar symptoms  in  other  persons,  they  were  necessarily  a  cause  of 
insanity. 

The  witness  (Dr.  May)  was  examined  by  the  court,  and  said  he 
was  a  practising  physician,  and  had  had  an  experience  since  1834. 
Has  had  opportunities  of  judging  of  the  effect  of  physical  diseases 
upon  the  mind,  but  he  distinctly  desired  to  say  he  was  not  an 
expert  on  the  subject  of  mental  diseases.  He  had  never  made  the 
study  of  the  mind  a  specialty.  He  had  studied  it  as  much  as  edu- 
cated physicians  do  generally;  but  whenever  he  had  a  case  of 
insanity,  persistent  in  its  nature  and  strongly  developed,  he  did  not 
attend  to  it  himself,  but  put  it  under  the  charge  of  those  who  had 
made  the  study  of  the  mind  a  specialty. 

Mr.  CABBIXGTON  said  he  held  that  any  educated  physician  was  a 
proper  witness  on  a  question  of  insanity. 

Mr.  VOOBHEES  argued  that  before  the  physician  could  be  a  com- 
petent witness,  it  was  necessary  to  show  that  he  possessed  that 
skill  required  by  the  books.  He  argued,  further,  that  the  term 
physician,  as  used  in  the  books,  when  applied  to  cases  of  insanity, 
applied  only  to  those  who  had  made  the  study  of  the  mind  a 
specialty. 

The  COUBT  decided  that  the  question  was  a  proper  one,  and  Mr 
Bradley  took  exception  to  the  ruling  of  the  court. 


TRIAL  OF  MARY  HARRIS.  71 

Dr.  MAY  said  he  did  not  professs  to  any  more  skill  than  a  physi- 
cian in  the  ordinary  routine  of  practice  might  require,  and  had 
never  made  the  study  of  the  mind  a  specialty. 

Mr.  HUGHES  objected  to  the  form  of  the  first  question,  and 
argued  that  all  of  the  facts  as  detailed  by  the  witnesses  should 
have  been  stated,  as  the  witness  had  not  heard  the  testimony  in  the 
case.  Whether  the  deceased  wrote  the  fictitious  letters  or  not,  the 
accused  at  least  believed  they  were  written  by  him;  and  her  disap- 
pointment in  love,  and  her  belief  that  deceased  intended  to  disgrace 
her,  had  the  same  effect  as  though  these  facts  were  actually  true, 
and  all  the  facts  as  testified  to  should  be  stated  to  the  witness. 
The  interrogatory  goes  to  the  question  of  general  insanity.  This 
plea  had  not  been  set  up,  but  simply  that  the  insanity  of  the 
accused  was  paroxysmal,  and  that  she  was  subject  to  mental  dis- 
turbance, which  manifested  itself  in  connection  with  Burroughs. 
All  the  facts  in  the  case  must,  therefore,  be  detailed  to  the  witness, 
and  not  only  a  few  of  them. 

Judge  WYLIE  said  he  did  not  know  what  the  evidence  was  in 
this  case.  He  was  not  the  judge  of  it,  and,  officially  and  judicially, 
he  must  close  his  eyes  to  it.  All  he  knew  was,  that  they  were  try- 
ing a  case  of  the  United  States  against  Mary  Harris;  and  at  this 
state  of  the  case  a  hypothetical  statement  was  submitted  to  a  wit- 
ness as  an  expert,  and  the  witness  was  asked  whether  a  party  thus 
affected  was  insane.  The  court  was  inclined  to  admit  the  evi- 
dence, but  the  prosecution  adduced  it  at  their  own  risk,  and  it 
might  be  subsequently  cast  aside,  and  the  jury  warned  not  to  co? 
sider  it. 

The  second  question  was  also  objected  to  by  Mr.  Hughes,  on  the 
ground  that  it  was  not  a  medical  question,  but  one  of  fact. 

Mr.  CAKRINGTON  urged  that  it  was  a  proper  question.  Dr 
Nichols  had  been  asked  for  his  opinion  as  to  the  insanity  of  the 
prisoner  in  regard  to  the  whole  evidence.  He  gave  that  opinion 
upon  the  evidence  as  he  understood  it;  but  he  (in  Mr.  C.'s  opinion^ 
misapprehended  the  testimony,  and  assumed  what  was  not  proven. 
When  Dr.  Nichols  gave  his  opinion  it  was  on  a  hypothetical  case, 
the  defense  relying  upon  a  hypothesis  to  prove  the  insanity  of  the 
accused.  The  prosecution  undertakes  to  meet  that  testimony  and 
opinion,  not  by  showing  merely  a  hypothetical  case,  but  by  adopt- 
ing all  the  facts  upon  which  the  opinion  of  Dr.  Nichols  is  based. 
Mr.  Carrington  argued  that  the  opinion  of  Dr.  May  and  other  edu 
cated  physicians  was  worth  more  than  the  opinion  of  those  who 
attended  only  to  disease  of  the  mind;  for  the  former  looked  to  all 


72  MODERN  JURY  JURY. 

physical  causes  for  certain  effects,  while  the  latter  pursued  but  on« 
branch. 

Mr.  HUGHES  replied  to  Mr.  Carrington,  and  said  this  paper 
seemed  to  be  but  a  commentary  on  the  testimony  of  Dr.  -Nichols, 
drawn  up  by  counsel,  and  to  which  they  desired  to  have  Dr.  May 
swear.  He  defended  Dr.  Nichols*  course,  and  dwelt  at  length 
upon  the  points  of  his  testimony. 

REMARKS  OF  HOK.  JAMES  HUGHES. 

This  speech  is  a  tersely  stated  argument,  without  the  least 
attempt  at  eloquence;  yet  it  is  telling,  as  a  contrast  10  what  fol- 
lows. 

Judge  HUGHES:  May  it  please  the  court,  and  you,  gentlemen 
of  the  jury,  it  is  essential  to  the  discharge  of  fhe  very  responsible 
duty  which  devolves  upon  you  in  the  decision  of  this  cause  chat 
you  should  well  understand  the  issue  which  yon  have  to  try.  The 
indictment  charges  the  defendant  with  murder;  and  in  this  charge 
is  included  the  lower  degree  of  felonious  homicide — manslaughter. 
Under  this  indictment,  if  the  evidence  is  satisfactory  of  the  guilt 
of  the  accused  beyond  a  reasonable  doubt,  you  ought  to  find  M>- 
Harris  guilty  of  murder;  or  if  the  proof  fall,  short  of  establishin- 
legal  malice — that  is  to  say,  if  the  killing,  instead  of  being  deliber 
ate  and  premeditated,  was  done  upon  sudden  heat — you  might  con 
vict  her  of  manslaughter.  To  this  indictment,  gentlemen,  she  has 
pleaded  "  not  guilty;"  and  this  puts  the  prosecution  upon  the  proof 
of  every  material  allegation  necessary  to  sustain  the  charge;  and 
this  proof  must  be  so  clear  that  you  will  be  able  to  say,  upon  your 
oaths,  that  her  guilt  is  established  beyond  a  reasonable  doubt. 
Otherwise  you  must  acquit  her. 

We  propose,  or  at  least  I  do,  to  meet  this  accusation  fairly.  I 
have  observed,  from  the  wording  of  one  of  the  instructions  asked 
for  by  the  counsel  for  the  prosecution,  a  disposition  on  their  part, 
if  they  fail  in  obtaining  a  conviction  for  murder,  to  endeavor  to 
obtain  from  you  a  compromise  verdict,  a  conviction  for  man- 
slaughter. 

Gentlemen,  this  killing  was  either  a  deliberate  and  premeditated 
murder,  or  it  was  no  crime  at  all;  it  was  either  excusable  homicide, 
committed  in  a  state  of  mind  which  rendered  the  accused  irrespon- 
sible for  her  act,  or  it  was  a  homicide,  although  with  great  provo- 
cation, yet  with  a  sufficient  degree  of  deliberation  and  premeditation 
to  constitute  the  offense  of  malice.  This,  then,  is  the  issue  which 
you  have  to  try;  and  it  is  not  amiss  that  I  should  direct  your  atten- 


TRIAL  OF  MARY  HARRIS.  73 

tion  to  the  parties  to  this  cause.  The  accused,  as  you  see,  is  a 
woman.  It  is  the  pleasure  of  the  prosecuting  attorney,  in  intro- 
ducing this  case  to  your  attention,  to  comment  on  this  subject.  He 
warned  you  against  sympathy;  he  warned  you  even  against  mercy; 
and  advised  you  that  the  laws  of  the  land  lodged  the  prerogative 
of  clemency  elsewhere.  While  he  himself  professed  great  sym 
pathy  for  woman,  he  also  professed  that  this  particular  female  was 
an  offender  so  black  with  crime  that  she  had  excluded  herself  from 
the  pale  of  sympathy  on  that  ground.  He  said  that  she  had  mani- 
fested a  savage  disregard  of  human  life;  and  later  in  the  progress 
of  the  cause,  when  the  oaths  of  the  witnesses  ought  to  have  dissi- 
pated any  such  impression  from  his  mind,  he,  with  great  emphasis, 
in  the  presence  of  the  court  and  yourselves,  pronounced  this  the 
most  atrocious  murder  on  record!  It  is  not,  gentlemen,  because 
the  defendant  is  a  woman  that  we  expect  an  acquittal  at  your 
hands.  She  is  young,  and  I  was  about  to  say  that  she  is  friendless; 
but  she  is  not;  but  I  will  say  this  in  her  praise,  that  whatever 
friends  she  has,  she  owes  to  her  own  unassuming  merits.  She  has 
neither  wealth,  station,  nor  kinsfolk;  nothing  to  make  her  friends 
except  her  misfortunes  and  her  good  conduct. 

It  is  not  because  she  is  a  woman;  it  is  not  because  her  parents 
and  relatives,  who  should  be  here  with  her  to-day,  to  sustain  her  in 
this  trying  ordeal,  have  been  separated  from  her,  and  have  become 
to  her  as  aliens  and  strangers,  through  the  acts  of  the  unfortunate 
inan  whose  life  she  has  taken;  it  is  not  for  that  that  we  shall  ask 
you  to  acquit  her,  but  because  she  is  innocent;  because  she  has  a 
right  to  a  verdict  of  not  guilty  from  you,  under  the  laws  of  the 
land.  And  permit  me  to  say  that,  whenever,  in  the  very  opening 
of  a  prosecution  like  this,  counsel,  of  the  learning,  experience,  and 
ability  of  those  prosecuting  this  case,  serve  notice  upon  the  court 
and  jury,  and  upon  all  mankind,  that  they  are  seeking  for  a  con- 
viction upon  mere  technical  grounds,  and  when  throughout  the 
progress  of  the  cause  the  same  disposition  is  manifested  by 
repeated  objections  to  testimony  as  it  is  offered,  and  when,  in  order 
to  induce  the  court  to  give  such  instructions  to  the  jury  as  were 
not  law,  for  the  purpose  of  conviction,  old  and  exploded  doctrines 
are  exhumed,  resuscitated,  and  appealed  to,  and  when  we  see 
immediately  behind  the  prosecution  the  party  representing  private 
vengeance  in  this  cause,  the  prosecution  so  introduced  seldom,  if 
ever,  fails  to  be  unsupported  by  law  and  by  evidence. 

Gentlemen,  the  defendant  is  brought  here  by  the  power  of  the 
Government,  to  answer  this  charge.  Human  life  has  been  taken, 
and  a  public  examination  of  the  circumstances  attending  it  is  due 


74  MODERN  JURY  TRIALS. 

to  public  justice;  it  is  proper  that  she  should  be  here  and  answer 
for  the  killing  of  this  man;  but  she  comes  here  helpless,  in  the 
hands  of  a  powerful  Government;  and  the  Government  is  the  other 
party  to  this  cause.  True,  the  duty  of  the  Government  is  to 
enforce  the  law;  to  punish  offenders;  to  protect  human  life;  but 
in  no  spirit  of  persecution  and  with  no  vindictiveness.  It  is  a 
painful  thing,  and  it  ought  to  be  so  to  the  officer  of  public  justice, 
to  arraign,  try,  and  execute  even  the  guilty.  Zeal,  perhaps  over- 
much, and  passion  may  be  excused  in  the  prisoner,  or  in  her  advo- 
cate when  arraigned  before  the  bar  of  public  justice,  and  charged 
with  the  highest  crime  known  to  the  laws,  but  the  representative 
of  the  commonwealth  comes  here  uninfluenced  by  private  consider- 
ations. He  is  presumed  to  be  disinterested,  presumed  to  be  impar- 
tial, and  absolutely  to  desire,  as  the  law  desires,  that  no  innocent 
person  should  suffer;  and  to  desire  to  prosecute  his  cause  in  the 
spirit  of  the  law,  which  says  that  it  is  better  that  ninety-nine 
guilty  persons  should  escape  than  that  one  innocent  person  should 
suffer. 

*  *  *  *  *  *  * 

Now,  the  fact  about  it  is,  that  there  is  a  letter  in  the  testimony 
which  shows  that  these  parties  had  a  lovers'  quarrel  and  exchanged 
tokens,  or  agreed  to  do  so;  but,  as  the  evidence  shows,  afterwards 
had  an  interview,  became  reconciled,  and  their  affairs  floated  on  in 
as  smooth  a  current  as  before.  If  this  be  not  so,  why  are  these  old 
letters  here  ?  why  is  this  picture  here  ?  If  the  agreement  to  break 
off  this  engagement  was  carried  out,  if  they  never  came  to  a  differ- 
ent understanding  than  that,  why  are  these  things  here  ?  Truly, 
the  man  must  be  blind,  I  think,  who  fails  to  understand  that  mat- 
ter, or  surely  he  never  was  in  love;  never  had  any  quarrels,  those 
lovers'  quarrels  which  are  said  to  be  sweet,  and  those  reconcilia- 
tions that  loom  up  in  after-years  as  the  green  spots  of  memory 
He  denies  here  that  the  engagement  to  marry  subsisted  after  the 
writing  of  this  letter,  and  asserts  that  the  lady  herself  broke  it  off, 
and  that  she  was  then  mistress  of  her  affections  and  remained  so, 
that  afterwards,  when  the  disconsolate  and  rejected  swain  married 
another  woman,  she  became  jealous  and  killed  him  for  itl  That  is 
his  theory.  The  mere  statement  of  such  a  theory  is  a  sufficient 
refutation,  and  shows  to  what  straits  the  prosecution  have  been 
driven.  How  hard  it  is  for  them  to  meet  fairly  the  law  and  the 
evidence  in  this  case,  and  to  get  up  even  a  plausible  theory  of  guilt 
against  this  poor  unfortunate  girL 

Then  he  speaks  of  punishment,  pursuing  the  same  cry  for  blood 
that  has  characterized  this  prosecution  from  the  commencement 


TRIAL  OF  MARY  HARRIS.  75 

Punishment  is  good  for  the  guilty,  but  when  administered  by 
courts  of  law  it  is  administered  in  a  spirit  of  sorrow  and  for  refor- 
mation, not  with  vindictiveness.  Punishment,  indeed!  Who  is  to 
punish  the  betrayer  of  female  honor  ?  Who  is  to  punish  the  ser- 
pent that,  with  his  slimy  track,  pursues  from  early  girlhood  into 
budding  womanhood  the  unfortunate  girl,  separates  her  from  her 
friends,  her  family,  and  leaves  her  alone  and  isolated,  without 
father  or  brother  to  defend  or  protect  her,  and  then  throws  her 
heartlessly  upon  the  world  ?  Who  is  to  punish  him  ? 

Ah!  this  unfortunate  man,  no  doubt,  thought  that  he  could  do  this 
thing  with  impunity,  because  this  girl  was  friendless.  There  is  a 
just  God,  however,  who  administers  justice  in  such  cases,  and  he 
chose  as  the  instrument  of  his  justice,  in  this  particular  case,  the 
poor  unfortunate  girl  whose  life  had  been  forever  blighted.  That 
little  girl  (pointing  to  the  prisoner),  with  that  little  hand  poised 
the  pistol  which  might,  upon  ordinary  occasions,  have  been  dis- 
charged a  hundred  times,  or  rather  snapped  (for  they  will  not  dis- 
charge one  time  in  fifty),  without  any  serious  consequence,  but 
with  that  toy  of  a  pistol  she  was  the  instrument  of  punishment  in 
the  hands  of  God,  and  He  took  away  her  reason,  and  she  stands 
here  to-day  secure  from  human  justice.  That  overruling  Provi- 
dence, without  whose  consent  not  even  a  sparrow  falls,  brought 
punishment  to  the  door  of  the  deceased — brought  it  by  the  hand 
of  her  that  he  had  ruined,  and  placed  her  in  a  position  where  she 
shall  answer  to  Him  alone  for  what  she  has  done,  and  not  to 
human  laws. 

Something  has  been  said  by  the  gentleman  who  has  just  taken 
his  seat,  about  attacks — attacks  which  have  been  made  upon  the 
deceased.  Gentlemen  of  the  jury,  one  of  the  most  painful  duties 
that  ever  devolves  upon  counsel,  in  the  necessary  defense  of  an 
accused  person,  is  to  throw  censure  upon  those  who  are  dead — to 
bring  up  their  faults,  their  crimes,  and  perhaps  their  wickedness — 
but  when  it  is  necessary  to  the  defense,  to  the  true  history  of  a 
transaction,  how  can  it  be  avoided  ?  Could  we  give  you  a  true 
history  of  the  causes  of  this  sad  tragedy  without  tracing  the  past 
relations  between  these  parties  ?  Could  we  stand  here  and  do  jus- 
tice to  our  client,  and  draw  the  veil  over  the  transactions  of  that 
man's  past  ?  I  submit  it  to  you,  gentlemen,  if  we  could  have  done 
BO,  so  far  as  I  was  concerned,  I  would  gladly  have  done  it,  and  I 
feel  assured  that  I  speak  the  sentiments  of  my  associate  counsel. 
What  attack,  or  what  denunciation  have  you  heard  of  that  dead 
man,  from  one  of  us,  with  the  exception,  perhaps,  of  a  single  expres- 
BHQ,  that  was  brought  out  by  one  of  the  counsel,  by  a  most  ujiwar- 


76  MODERN  JURY  TRIALS. 

ranted  attack  upon  our  client  from  the  prosecution  ?  Attack  him  * 
The  gentleman  ought  to  know  that  all  attacks  upon  human  con 
duct  are  harmless,  except  when  the  weapons  are  furnished  from  the 
magazine  of  a  man's  own  life.  A  man  who  leads  a  pure  life,  who 
deals  fairly  and  honestly  with  his  fellows,  may  be  persecuted,  may 
be  hunted  down,  calumniated,  but  his  character  will  only  shine 
brighter  for  all  that,  if  it  can  stand  the  test;  and  we  know  that 
so  well  that  we  would  feel  assured  that  an  unwarranted  attack  upon 
this  man  by  us  would  only  recoil  upon  us,  and  do  our  cause  an 
injury.  But  attacks  are  fatal  where  the  conduct  of  the  party  him- 
self has  furnished  the  weapons  with  which  to  make  them;  and  we 
submit  it  to  yon,  gentlemen,  whether,  in  this  case,  the  unfortunate 
deceased  has  not  furnished  everything  necessary,  notwithstanding 
the  boast  of  the  prosecution,  in  his  opening  speech,  that  he  died 
without  a  stain?  What  have  we  heard  of  his  dying  declarations? 
Why  did  not  they  tell  you  what  he  said,  if  he  said  anything?  It 
is  a  singular  fact  that  the  prosecution  has 'introduced  no  testimony 
as  to  that.  I  do  not  say  there  were  any  dying  declarations,  but 
there  might  have  been,  and  there  might  not  have  been.  He  lived, 
you  will  remember,  fifteen  minutes. 

Attacked !  Yes,  he  has  been  attacked,  but  not  by  counsel.  Who, 
then,  you  may  unthinkingly  ask,  attacked  him  ?  The  sworn  evi- 
dence in  the  cause  attacks  him.  His  own  letters  attack  him.  His 
inhuman  cruelty,  in  seeking  to  destroy  the  reputation  of  this  poor 
girl,  when  he  had  resolved  to  desert  her,  attack  him.  His  anony- 
mous letters  attack  him.  His  assumption  of  the  relation  of  hus- 
band for  a  most  worthy  and  estimable  lady,  under  the  solemn  sac- 
raments of  religion,  occupying  the  position  that  he  did  to  the 
accused  in  this  case,  attack  him;  and  one  who  had  sought  to  sus- 
tain him  in  his  wrongs,  and  one  who  has  been  the  partner  of  his 
cruelty,  and  I  might  also  say  the  partner  of  his  guilt,  toward  this 
young  woman — even  his  own  brother — attacks  him. 

Gentlemen,  you  have  more  evidence  before  you  to  show  you  that 
the  Rev.  John  C.  Burroughs  is  the  responsible  cause  of  his  broth- 
er's death  than  you  have  to  show  that  this  unfortunate  girl  was. 

And  then,  aaain,  they  say  we  have  attacked  the  Rev.  John  C. 
Burroughs!  When  did  we  attack  him?  Oh!  somebody  looked; 
Mr.  Bradley's  eye  flashed  in  honest  indignation  at  the  halting  man- 
ner of  some  of  the  prevarications  of  the  witness.  Guilty  people 
are  very  sensitive  about  these  things.  I  do  not  know  that  we  have 
as  yet  attacked  Dr.  Burroughs'  testimony,  and  I  would  not  go  one 
step  to  the  right  or  to  the  left  to  attack  it,  if  it  were  not  mv  duty; 
but  I  know  that  I  mean  to  attac-k  it;  and  if  I  failed  to  do  so,  I 


TRIAL  OF  MARY  HARRIS.  77 

would  be  recreant  to  the  duty  that  I  owe  to  my  client  in  this  case. 
What!  a  doctor  of  divinity,  who  has  come  here  and  contradicted 
the  statement  of  every  witness  in  regard  to  the  material  points  in 
this  case!  who  has  testified  that  his  brother  was  not  in  Chicago 
upon  a  certain  day,  and  therefore  it  was  impossible  for  him  to  be 
at  a  certain  place;  who,  knowing  that  this  prostitute,  Ellen  Mills, 
knew  the  fact,  and  could  either  sustain  or  overthrow  him,  for  he 
himself  tells  you  that  when  a  detective  or  a  policeman  told  him 
that,  with  one  or  two  hundred  dollars  he  could  get  her  out  of  the 
way,  he  made  use  of  no  expression  of  disapprobation — not  to  be 
attacked  ? 

A  reverend  gentleman,  seeking  simply  for  justice  and  for  truth, 
to  thus  make  himself  a  silent  party  to  the  running  off  of  a  most 
material  witness  for  the  defense,  and  then  come  here  and  attempt 
to  swear  away  the  facts  upon  which  that  defense  was  based! 
Attack  him!  Yes,  we  will  attack  him;  and  the  justice  of  God, 
that  took  away  his  brother's  life,  will,  in  my  humble  opinion,  bring 
to  him  his  share  of  the  punishment;  for  to  him,  a  clergyman,  rep- 
utation and  credit  are  everything.  If  this  trial  does  not  condemn 
him  with  his  congregation,  and  with  all  good  Christian  people  in 
this  land,  then  commend  me  to  the  standard  of  public  sentiment  in 
Chicago. 

Now,  gentlemen,  we  meet  the  issue  fairly.  The  killing  is  ad- 
mitted. The  court  has  laid  down  the  law  that  we  must  assume 
the  burden  of  proof  as  to  the  insanity.  We  accept  it.  The  court 
has  stated  the  degreee  of  certainty  with  which  we  must  establish 
it.  I  reply  that  we  accept  it.  We  will  try  to  meet  the  issue. 
"Oh!  how  I  loved  him,"  is  the  words  of  this  tender  girl. 

If  this  young  lady  could  go  through  all  this,  could  bear  all  this, 
and  yet  endure  the  sight  of  him  and  control  of  her  reason,  of  her 
conduct,  she  has  a  heart  and  a  soul  most  obdurate.  The  mere  state- 
ment of  the  case,  gentlemen,  is  enough.  Now,  upon  that  evidence, 
all  of  which  he  heard,  and  upon  the  facts  that  came  within  his  own 
knowledge,  Dr.  Nichols,  an  eminent  physician,  having  charge  of  an 
insane  asylum,  possessed  of  great  experience  in  this  particular 
branch  of  science,  has  stated  to  you,  repeatedly  and  distinctly,  his 
sworn  opinion,  that  the  killing  of  Mr.  Burroughs  was  the  result  of 
an  insane  impulse.  Do  you  object  to  that  testimony,  gentlemen  ? 
Are  you  so  hungry  for  conviction  in  this  case — do  you  participate 
so  much  in  the  feelings  that  have  actuated  the  prosecution — that 
with  the  sworn  testimony  of  this  eminent  physician,  supported  by 
that  of  every  other  doctor  testifying  in  the  cause,  you  can  say  that 
you  require  any  further  proof  to  satisfy  you  beyond  a  reasonable 


78  MODERN  JURY  TRIALS. 

doubt,  since  such  is  the  requirement  of  the  law,  that  this  girl  wap 
insane,  in  the  sense  we  claim?  We  do  not  claim  that  she  was  gen- 
erally insane,  as  the  prosecution  insist  upon  having  you  believe. 
Have  we  not  repeatedly  stated  that  we  did  not  claim  she  was  even 
partially  insane  all  the  time;  but  that  simply  she  was  subject  to 
sudden  attacks,  overwhelming  paroxysms  of  insane  impulses  ?  The 
testimony  of  the  doctor  met  the  question  fairly  and  fully,  but  the 
argument  of  the  prosecuting  counsel  did  not  meet  it  all.  He  had 
nothing  to  say  about  the  testimony  of  Dr.  Nichols. 

I  read  from  Ray's  Medical  Jurisprudence,  page  66,  section  45: 
"It  is  not  enough  that  the  standing  of  the  medical  witness  is 
deservedly  high  in  his  profession,  unless  it  is  founded  on  extraordi- 
nary knowledge  and  skill  relative  to  the  particular  disease,  insanity. 
Lunatic  asylums  have  so  multiplied  in  our  country,  that  patients  of 
this  class  are  almost  entirely  taken  away  from  the  management  of 
the  private  physician,  and  confided  to  the  more  skillful  conductors 
of  these  institutions;  so  that  many  a  medical  man  may  spend  a  life 
of  full  practice  without  having  been  intrusted  with  the  care  of  a 
dozen  insane  persons.  To  such,  therefore,  a  practical  knowledge  of 
the  disease  is  out  of  the  question;  and  thus  the  principal  induce- 
ment is  wanting  to  become  acquainted  with  the  labors  of  those  who 
have  enjoyed  better  opportunities.  If  a  particular  class  of  men 
only  are  thought  capable  of  managing  the  treatment  of  the  insane, 
it  would  seem  to  follow,  as  a  matter  of  course,  that  such  only  are 
capable  of  giving  opinions  in  judicial  proceedings  relative  to  insan- 
ity. True,  in  important  cases,  the  testimony  of  one  or  more  of  this 
class  is  generally  given;  but  it  may  be  contradicted  by  that  of 
others  utterly  destitute  of  any  knowledge  of  the  subject  on  which 
they  tender  their  opinions  with  arrogant  confidence,  and  the  jury  is 
seldom  a  proper  tribunal  for  distinguishing  the  true  from  the  false, 
and  fixing  on  each  its  right  value.  An  enlightened  and  conscien- 
tious jury,  when  required  to  decide  in  a  case  of  doubtful  insanity, 
which  is  to  determine  the  weal  or  woe  of  a  fellow  being,  fully  alive 
to  the  delicacy  and  responsibility  of  their  situation,  and  of  their 
own  incompetence  unaided  by  the  counsels  of  others,  will  be  satis- 
fied with  nothing  less  than  the  opinions  of  those  who  have  pos- 
sessed unusual  opportunities  for  studying  the  character  and  conduct 
of  the  insane,  and  have  the  qualities  of  mind  necessary  to  enable 
them  to  profit  by  their  observations.  If  they  are  obliged  to  decide 
on  professional  subjects,  it  would  seem  but  just,  and  the  dictate  of 
common  sense,  that  they  should  have  the  benefit  of  the  best  profes- 
sional advice.  This,  however,  they  do  not  always  have;  and,  con- 


TRIAL  OF  MARY  HARRIS.  79 

sequently,  the  ends  of  justice  are  too  often  defeated  by  the  high- 
sounding  assumptions  of  ignorance  and  vanity." 

Just  such  testimony,  then,  as  the  law  requires,  we  have  given 
you,  and  it  was  no  doubtful,  no  hesitating  opinion  that  this  learned 
and  experienced  physician  gave  you;  and  his  manner  was  such  as 
must  have  recommended  his  testimony  to  every  impartial  mind. 
We  took  the  risk  of  that,  and  put  the  question  to  him,  not  con- 
tenting ourselves  with  proving  acts  of  insanity  before,  and  acts  of 
insanity  afterwards,  but  we  marched  right  up  directly  to  the  issue 
and  put  the  question  to  him  as  to  the  precise  moment  of  time  when 
the  homicide  was  committed.  He  said  that  act  was  the  result  of 
an  insane  impulse.  Do  you  believe  it  ?  If  you  do,  gentlemen,  you 
must  acquit  this  prisoner. 

My  brother  hoped  "  a  Washington  jury  would  maintain  their 
dignity."  Do  you  think  it  would  be  maintained  by  convicting 
an  insane  woman,  because  there  is  too  much  licentiousness  in  the 
town  generally  ?  What  kind  of  an  appeal  to  a  jury  is  that  ?  Way 
out  in  the  far  West,  in  the  trial  of  little  suits  before  a  justice  of  the 
peace,  I  have  heard  appeals  made  to  excite  prejudices  against  a 
town  of  people;  but  I  admit  I  was  not  prepared  to  hear  such  an 
appeal  at  the  capital  of  the  nation.  A  city  of  licentiousness !  If 
that  be  so,  and  a  reformation  is  to  begin,  wait  until  you  have 
before  you  some  man  of  power  and  influence,  and  you  will  not 
have  long  to  wait.  The  signs  of  the  times  indicate  that.  Wait 
until  some  unprincipled  official,  who  has  taken  advantage  of  the 
disjointed  state  of  the  times  to  trample  upon  human  liberty,  upon 
human  rights,  and  to  disregard  statutes,  constitutions,  and  every 
sanction  of  liberty — wait  until  such  men  are  dragged  here,  and 
then  vindicate  the  law  in  Washington.  In  the  meantime,  let  this 
poor,  blighted,  afflicted,  ruined  and  persecuted  girl  go  free.  The  law 
has  no  claim  upon  her.  Let  your  verdict  follow  the  partner  of  the 
deceased  in  this  plot;  and  let  Washington  justice  travel  to  Chi- 
cago, and  unmask  there,  before  a  confiding  and  trusting  congrega- 
tion and  people,  a  man  who  wears  the  livery  of  Heaven  to  serve  the 
devil  under. 

Gentlemen,  I  am  now  through  with  this  cause,  and  knowing,  as  I 
do,  that  I  shall  be  followed  by  a  gentleman,  who  will  far  more  than 
supply  anything  I  may  have  omitted,  so  far  as  I  am  concerned,  I 
commit  the  case  into  your  hands,  with  the  most  perfect  and 
implicit  confidence,  that  it  will  not  take  you  long  when  you  get 
this  case  fairly  into  you  hands  to  record  a  verdict  of  Not  Guilty. 


SO  MODERN  JURY  TRIALS. 

REMARKS  OF  HON.  D.  W.  VOOBHBES. 

Mr.  VOOBHEES  said:  It  is  not  necessary  for  me  to  attempt  to 
increase  your  sense  of  the  solemnity  of  the  issue  which  is  placed  in 
your  hands.  Nor  need  I  dwell  upon  the  fact  that  this  is  one  of  the 
most  remarkable  cases  ever  submitted  to  a  jury  for  trial.  In  many 
of  its  aspects  it  wears  features  more  startling  and  extraordinary 
than  we  have  hitherto  met  with  in  the  annals  of  jurisprudence. 
There  is  no  man  in  this  court  room,  no  one  throughout  this  broad 
land,  whatever  his  experience  or  profession  may  be,  who  has  ever 
seen  its  like  in  all  respects  before. 

A  few  months  ago,  in  open  day,  in  one  of  the  public  buildings  of 
this  capital,  and  in  the  presence  of  numerous  observers,  a  human 
being  was  shot  down  by  the  frail  hand  of  the  prisoner  at  the  bar, 
and  sent  to  his  final,  dread  account.  The  homicide  mentioned  in 
the  indictment  was  thus  committed;  and  if  it  was  deliberate, 
rational  murder,  then  the  blood  of  innocence  is  crying  unappeased 
from  the  ground.  But  what  are  the  elements  which  constitute  this 
baleful  crime  ?  From  that  hour  presaging  woe  to  the  human  race, 
when  the  first  man  born  of  woman  became  a  murderer,  down  to  the 
present  time,  we  have  on  record  the  frightful  characteristics  of  the 
murderer.  He  is  a  being  in  whose  heart  the  fires  of  malice  and 
hate  glow  in  perpetual  flames,  in  whose  face  the  image  of  God  is 
blotted  out,  in  whose  eyes  the  light  of  mercy  and  love  is  forever 
quenched,  who  lies  in  wait  like  the  tiger  for  his  prey,  and  who 
strikes  his  unsuspecting  and  unoffending  victim  from  motives  of 
revenge  or  the  lust  of  gain.  Around  such  a  being  there  centers 
every  conception  of  horror  which  the  human  mind  can  embrace. 
All  nature,  animate  and  inanimate,  the  very  earth  and  sky,  recoil 
from  him  who  bears  the  primal  curse,  and  there  is  no  communion 
for  his  blackened  spirit  this  side  of  the  abodes  of  the  lost. 

But  turn  from  this  faint  picture  of  a  real  murderer  to  the  deli- 
cate, gentle  being  before  you.  We  are  told  that  deliberate  and 
atrocious  murder  has  been  committed  and  that  the  criminal  is  in 
court.  We  are  told  that  a  brutal  assassination  has  been  accom- 
plished, and  that  the  lurking  and  ferocious  assassin  is  in  our  pres 
ence.  Where,  gentlemen,  where  ?  Am  I  to  be  told  that  this  heart- 
broken young  girl,  with  her  innocent,  appealing  face,  and  look  of 
supplicating  dependence  on  you,  is  the  fierce  and  malignant 
monster  of  guilt  which  is  described  in  the  indictment  and  in  the 
inflammatory  language  of  the  prosecution  ?  Am  I  to  be  told  that 
her  heart  conceived  and  her  hand  executed  that  crime  for  which  the 
Almighty  marked  the  brow  of  Cain  ? 


TRIAL  OP  MARY  HARRIS.  81 

Let  us  pause  and  reason  together  for  a  few  moments  on  a  prim- 
ary question  in  this  case.  The  life  of  this  defendant,  from  the 
days  of  her  early  and  happy  childhood  to  the  present  hour,  has 
been  investigated  and  laid  open  before  you.  Every  trait  of  her 
character,  all  the  general  incidents  of  her  conduct  since  she  was  ten 
years  old,  have  been  elucidated  and  detailed  in  your  hearing.  Of 
what  vice  has  she  ever  been  guilty  ?  In  what  immorality  has  she 
ever  indulged  ?  Not  one,  at  no  time  and  under  no  circumstances. 
Her  life  has  been  amiable,  kind,  affectionate,  blameless,  and  pure. 
Troops  of  friends,  of  the  best  and  most  irreproachable  in  the  land, 
have  gathered  about  her  in  her  quiet  sphere  at  every  stage  of  her 
checkered  existence.  These  files  of  depositions  declaring  all  her 
ways  for  nearly  ten  years  past  attest  these  facts.  Then,  at  the  very 
threshold  of  this  case,  you  are  to  answer  this  question:  Can  a  young 
and  generous  mind,  wholly  uncontaminated  with  vice,  unsullied 
and  unstained  by  contact  with  the  evil  practices  of  life,  without 
previous  training  even  in  the  contemplation  of  crime,  at  once, 
while  in  a  healthy  state,  in  the  undisturbed  enjoyment  of  all  its 
faculties,  incur  that  awful  grade  of  guilt  at  which  civilized  human 
nature  in  all  ages  stands  aghast  ?  Is  it  within  your  experience  that 
the  soil  of  virtue  bears  spontaneously  the  hideous  fruits  of  vice  ? 
Are  there  no  gradations  in  human  character  and  conduct?  Where 
is  the  hardened  criminal  who  ever  ascended  the  gibbet  in  expiation 
of  his  offenses  who  has  not  marked  his  downfall  from  small  begin- 
nings, increasing  gradually  and  swelling  in  volume  until  he  was 
hurled  onward  to  the  commission  of  gigantic  crimes  for  which  the 
law  claimed  his  life  as  forfeit?  And  yet  you  are  called  on  to 
believe  that  this  defendant,  at  one  single  bound,  sprang  from  the 
paths  of  virtue,  gentleness  and  purity,  without  any  intervening 
preparation,  to  the  highest  and  most  revolting  grade  of  guilt  and 
ferocity  known  to  human  society.  Those  who  have  predetermined 
her  guilt  and  passed  a  verdict  in  advance  of  the  evidence  and  the 
law,  may  indulge  in  this  absurd  and  repulsive  philosophy.  They 
may  cherish  this  libel  on  human  nature.  And,  in  doing  so,  they 
may  as  well  go  further.  Let  the  school-houses  be  torn  down  and 
the  churches  abandoned.  The  instruction  and  moral  culture  of 
youth  are  useless  and  in  vain.  The  precepts  of  morality  and  the 
principles  of  religion  afford  no  security  to  the  minds  of  their  pos- 
sessors from  the  sudden,  instantaneous  development  of  the  most 
appalling  wickedness. 

In  the  name  of  reason  and  universal  experience  I  utterly  repu^i- 
ate  this  shocking  theory,  which  the  prosecution  is  forced  to  embrace 
'oefore  it  can  proceed  a  single  step  against  the  life  of  this  girl.  In 


82  MODERN  JURY  TRIAL& 

the  name  of  undefiled  and  virtuous  human  nature  I  repel  it.  In 
the  name  of  innocent  childhood  and  unstained  womanhood,  in  the 
name  of  your  own  dear  ones  at  home,  I  pronounce  it  a  slander  upon 
those  holy  attributes  of  the  human  heart  which  tend  upwards,  and 
ally  us  with  heaven.  I  deny  that  Mary  Harris  is  a  crimin?!.  I 
deny  that  any  murder  has  been  committed.  I  deny  that  this 
young  prisoner  is  responsible  for  the  death  of  A.  J.  Burroughs.  I 
assert  that  his  death  was  not  a  crime.  He  was  not  slain  in  viola- 
tion of  law,  for  offenses  against  the  law  can  only  come  by  those 
who  possess  a  sound  mind  and  an  unimpaired  intelligence.  And 
now,  invoking  your  attention,  I  shall  proceed  to  show  you  from 
the  story  of  her  life,  which  must  constitute  her  defense,  that  it  is 
not  your  duty  to  lay  your  hands  in  further  punishment  on  the  suf- 
fering head  of  Mary  Harris,  but  that  it  will  rather  be  your  pleasing 
task  to  open  her  prison  doors  and  bid  her  go  free,  attended  by  the 
charitable  blessings  of  all  Christian  people. 

Who  is  this  unfortunate  defendant,  and  whence  came  she,  when 
her  weary  feet  bore  her  still  more  weary  heart  \to  this  crowded 
capital  ?  A  short  time  since,  and  but  few  here  could  have 
answered;  but  now  all  is  known.  We  see  at  a  single  glance  a 
gliding,  panoramic  view  of  the  life  of  an  earnest,  devoted  girl. 
Our  eyes  first  rest  upon  a  point  nearly  ten  years  ago.  At  this  time 
Mary  Harris  was  a  beautiful  and  happy  child,  some  ten  years  of 
age,  in  the  town  of  Burlington,  Iowa.  In  that  hour  of  tender 
childhood  the  evidence  shows  that  Burroughs  first  met  her;  and 
would  to  God  that  in  that  hour  she  had  died!  Gentle  memories 
would  have  clustered  around  her  peaceful  grave,  and  this  bitter  cup, 
whose  very  dregs  she  is  now  drinking,  would  have  been  spared  her. 
There  is  a  mercy  at  times  in  death,  for  which  the  stricken  soul 
longs  and  gasps  as  the  parched  and  feverish  earth  does  for  the 
cooling  rain.  But  He  who  notes  the  sparrow  fall,  and  has  a  design 
in  all  the  ways  of  men,  ordered  it  otherwise;  and  she  is  here  to-day 
weary  and  heavily  laden,  but  humbly  submitting  to  the  Providence 
by  which  her  own  will  has  been  overruled  and  her  actions  guided. 

Burroughs  at  this  time,  gentlemen,  was  a  man  of  comparatively 
mature  age,  more  than  twice  her  senior — as  he  afterwards  in  his 
letters  declares — almost  old  enough  to  be  her  father.  She  sat  upon 
his  knee  in  the  purity  of  unconscious  childhood.  I  speak  now 
from  the  evidence  furnished  by  his  own  letters  of  a  later  period, 
and  also  from  the  testimony  of  those  who  witnessed  at  that  time 
their  constant  intercourse.  He  proposed  to  mold  and  fashion  her 
mind  by  the  superior  force  of  his  own  age,  experience,  and  will,  in 
order  that  she  might,  at  a  future  period,  make  him  a  suitable  vife. 


TRIAL  OF  MARY  HARRIS.  83 

There  is  no  room  to  doubt  upon  this  point.  Let  those  ninety-two 
letters  here  produced  in  court  make  their  appeal.  They  speak  in 
no  uncertain  tone.  They  show  us  robust,  developed  manhood 
seeking  the  ascendancy  over  a  confiding  child.  They  show  us 
maturity  and  strength  striving  for  the  mastery  over  inexperience 
and  weakness.  He  assumes  even  a  paternal  interest,  and  teaches 
her  young  heart  literally  to  leave  father  and  mother  and  cleave 
unto  him.  We  hear  it  stated  that  no  marriage  engagement  ever 
existed  between  them.  The  miserable  desire  to  inflict  indiscrimin- 
ate punishment  upon  the  innocent  as  well  as  the  guilty  would  even 
deny  this  plain  fact,  which  is  established  by  almost  every  line  of 
the  evidence  to  which  you  have  listened.  The  prosecution  itself 
proved  that  at  one  time  the  very  day  was  fixed  for  the  fulfillment 
of  their  oft-repeated  vows. 

Under  these  circumstances,  need  I  dwell  at  length  upon  the 
imperious  nature  of  the  influence  which  he  obtained  over  her? 
The  child  became  absorbed  in  the  man.  What  else  could  happen? 
They  walked  the  pathway  of  life  hand  in  hand  for  many  long 
years  of  hope  and  fond  anticipation.  He  taught  her  to  regard  him 
as  her  future  destiny.  He  was  all  the  world  to  her.  Her  heart 
opened  and  expanded  under  the  influence  of  his  smile  as  the  bud 
becomes  a  flower  beneath  the  rays  of  the  sun.  She  grew  up  to 
womanhood  in  unquestioning  obedience  to  his  will.  The  ties  by 
which  she  was  bound  to  him  were  the  growth  of  years,  and  em- 
braced all  the  strength  of  her  whole  being.  .  And  did  all  this  have 
no  effect  on  the  subsequent  condition  of  her  mind  when  disaster 
came  ?  He  had  carried  her  to  the  highest  pinnacle  of  happiness 
and  hope.  She  stood  upon  the  summit  of  joyous  expectations,  and 
all  around  her  was  sunshine  and  gladness.  Well  might  she 
exclaim  to  my  learned  and  eminent  brother,  as  she  paced  her 
prison  floor,  "Oh!  Mr.  Bradley,  you  should  have  seen  me  then;  I 
was  so  happy  !"  Yes;  though  poor  and  humble,  yet  she  loved  and 
was  beloved,  and  it  was  enough;  she  was  content.  For  in  that 
hour,  when  a  virtuous  woman  feels  for  the  first  time  that  she  pos- 
sesses the  object  of  her  devotion,  there  comes  to  her  a  season  of 
bliss  which  brightens  all  the  earth  before  her.  The  mother  watch- 
ing her  sleeping  babe  has  an  exclusive  joy  beyond  the  comprehen- 
sion of  all  hearts  but  her  own.  The  wife  who  is  graced  by  her 
husband's  love  is  more  beautifully  arrayed  than  the  lilies,  and 
envies  not  the  diadems  of  queens.  But  to  the  young  virgin  heart, 
more  than  all,  when  the  kindling  inspiration  of  its  first  and  sacred 
love  is  accompanied  by  a  knowledge  that  for  it  in  return  there 
burns  a  holy  flame,  there  comes  an  ecstacy  of  the  soul,  a  rapturous 


84  MODERN  JURY  TRIALa 

exaltation,  more  divine  than  will  ever  again  be  tasted  this  side  of 
the  bright  waters  and  perennial  fountains  of  paradise.  The  stars 
grow  brighter,  the  earth  more  beautiful,  and  the  world  for  her  is 
filled  with  a  delicious  melody.  This,  peculiarly,  is  woman's  sphere 
of  happiness.  There  she  concentrates  all  the  wealth,  the  unsearch- 
able riches  of  her  heart,  and  stakes  them  all  upon  the  single  hazard. 
If  she  loses,  all  is  lost;  and  night  and  thick  darkness  settle  down 
upon  her  pathway.  It  is  not  so  with  man.  His  theatre  is  broader. 
No  single  passion  can  so  powerfully  absorb  him.  A  variety  of 
interests  appeal  to  him  at  every  step.  If  disappointment  overtakes 
him,  a  wide  and  open  horizon  invites  him  to  new  enterprises, 
which  will  relieve  him  of  that  still,  deep,  brooding  intensity  which 
is  the  pregnant  parent  of  woe,  insanity,  and  death  to  woman. 

I  am  speaking  now  of  general  principles;  but  every  word  that  I 
have  said  is  applicable  to  the  case  of  Mary  Harris.  For  when  her 
parents,  distrusting  Burroughs,  and  fearing  that  very  treachery 
which  afterwards  blasted  her  life  as  well  as  his  own,  endeavored 
to  break  off  the  connection  and  wed  her  to  another,  who,  from  their 
previous  history,  could  for  a  moment  doubt  the  result?  He  went 
to  Chicago,  and  advised  her  to  do  the  same  in  order  to  be  near  him. 
Gentlernen,  the  language  which  faithful  woman  holds  to  the  object 
of  her  love  when  the  hour  of  separation  is  threatened  is  very  old 
and  very  beautiful: 

"  Entreat  me  not  to  leave  thee,  or  to  return  from  following  after 
thee;  for  whither  thou  goest  I  will  go,  where  thou  lodgest  I  will 
lodge: 

"Thy  people  shall  be  my  people,  thy  God  my  God;  where  thou 
diest  there  I  will  be  buried: 

"  May  the  Lord  do  so  to  me  and  more  also  if  aught  but  death 
part  thee  and  me." 

It  was  in  this  spirit  and  under  these  circumstances  that  she  came 
to  Chicago  and  resided  with  the  Misses  Jane  and  Louisa  Devlin. 
It  was  Burroughs  still  shaping  her  destiny.  It  was  the  man  still 
pointing  the  course  for  the  child  to  follow.  And  shall  this  be 
imputed  to  her  as  a  fault  ?  Will  this  prosecution,  fed,  as  I  believe 
it  to  be,  from  the  springs  of  private  malice,  assail  her  because  she 
trusted  Burroughs  and  confided  in  his  honor?  Had  Burroughs 
been  faithful  to  his  vows,  as  he  was  called  on  to  be,  by  every  attri- 
bute which  ennobles  manhood,  by  every  law,  human  and  divine, 
then  this  unhappy  girl  would  have  been  to-day  his  respected  wife, 
and  the  world  would  have  applauded  her  sublime  devotion  to  him 
when  the  truth  between  them  was  sought  to  be  poisoned  by  whis- 
pering tongues.  Now,  because  he  was  false  and  broke  her  heart, 


TRIAL  OF  MARY  HARRIS.  86 

you  are  called  upon  to  believe  that  this  act  abased  her  virtuous 
brow  into  the  dust  of  shame.  I  repel  this  calumny.  Not  only  do 
I  pronounce  it  a  slander  upon  Mary  Harris,  but  it  is  equally  a  slan- 
der upon  the  truth,  fidelity,  and  virtue  of  womanhood.  She  did 
no  more  than  what  the  proudest,  the  purest,  and  the  best  have  done 
in  all  countries  and  at  all  times.  She  endowed  him  upon  whose 
arm  she  leaned  with  the  principles  of  justice  and  honor;  she  crowned 
his  brow  with  a  constellation  of  all  the  virtues  and  then  trusted 
him.  She  turned  her  back  on  home,  kindred,  and  friends,  and 
with  him  faced  the  world  alone. 

We  are  told  that  no  stain  shall  rest  upon  the  name  of  the  deceased. 
The  leading  counsel  for  the  Government,  at  the  very  opening  of 
this  trial,  announced,  with  singular  emphasis,  as  if  anticipating 
your  conclusion,  that  he  was  a  Christian  who  had  lived  and  died 
without  blemish  or  reproach  to  that  sacred  character.  His  brother, 
the  Rev.  John  C.  Burroughs,  says  that  his  object  here  is  to  relieve 
his  name  from  the  slightest  opprobrium.  Thus  we  see  the  purpose 
of  this  unnatural  struggle  for  a  conviction,  in  the  face  of  law  and 
evidence,  which  for  more  than  two  hundred  years  have  prevailed 
in  the  defense  of  the  children  of  misfortune  and  providential  afflic- 
tion. Mary  Harris  is  to  be  condemned,  to  be  carried  to  the  horrid 
gibbet,  that  appalling  machinery  of  death,  terror,  and  lasting 
ignominy,  in  order  that  the  conduct  of  A.  J.  Burroughs  shall  stand 
triumphantly  vindicated!  I  do  not  wish  to  assail  the  dead;  but  is 
it  expected  that  this  monstrous  assumption  in  favor  of  crime  shall 
be  passed  in  silence  ?  Shall  this  trial  impress  upon  the  public 
mind,  as  a  lesson  for  future  action,  that  it  is  a  part  of  the  Christian 
character  to  win  the  love  and  confidence  of  a  child,  to  cultivate 
her  affections  as  years  advance,  engage  to  become  her  husband, 
induce  her  to  leave  her  home  in  order  to  enjoy  his  society,  and  to 
escape  from  another  proposal  of  marriage;  and  then,  after  seven 
years  of  hope  deferred,  to  dispel  all  her  bright  dreams  of  life  by 
quitting  her  in  a  moment,  by  dropping  all  connection  with  her 
without  a  word  of  explanation,  by  marrying  another  woman  and 
turning  his  back  on  her  forever  ? 

******* 

Time  passed  on  with  this  defendant,  bearing  her  onward  to  a 
region  of  horrors,  to  the  scene  of  her  dismay  and  ruin;  and  I  must 
move  along  on  the  melancholy  tide,  and  approach  the  sorrowful 
hour.  We  have  now  traced  these  parties  for  years.  Burroughs 
had  carried  her  hopes  to  the  highest  elevation.  She  was  looking 
forward  to  a  future  filled  with  honor  and  with  delight.  It  was  of  his 
creation  and  there  was  not  a  cloud  within  the  scope  of  her  vision. 


86  MODERN  JURY  TRIALS. 

In  such  a  serene  and  happy  moment  as  this,  with  no  note  of  prepa- 
ration to  her  tender  and  susceptible  mind,  with  no  sign  of  warning, 
the  blow  descended  upon  her  naked  head,  shivering  every  hope 
with  which  her  heart  was  tenanted,  and  dashing  the  temple  of 
reason  itself  into  ruins.  Is  this  statement  the  work  of  fancy  on 
my  part?  Is  it  not  the  sad,  literal  truth?  I  appeal  to  you  who 
have  heard  the  evidence.  Counsel  have  seen  fit  to  attribute  pow- 
ers of  eloquence  to  me,  which  I  neither  possess  nor  affect.  I  can 
only  repeat  to  you  a  plain  and  simple  story  of  wrong,  misery  and 
madness  which  you  already  know,  and  which  is  far  more  eloquent 
in  itself  than  any  words  I  can  employ.  Seven  years  of  love  were 
spurned  in  an  instant.  Seven  years  of  patient  hope  were  turned 
in  a  moment  to  despair.  He  had  lifted  her  up  almost  to  celestial 
heights,  only  that  her  fall  might  be  sufficiently  great  to  dash  her 
to  pieces.  Though  without  sin,  yet  she  was  cast  out  from  her 
place  of  blissful  abode  and  fell  like  the  sun  of  the  morning  to  hope 
no  more  forever.  In  order  to  understand  the  effect  of  disappoint- 
ment and  misfortune,  we  must  fully  consider  the  condition  of  the 
mind  when  the  shock  came.  Adopting  this  rule  in  the  present 
instance,  and  we  shudder  at  the  bare  contemplation  of  the  mental 
agony  of  the  defendant  when  she  realized  that  she  was  abandoned 
by  him  for  whom  she  had  abandoned  all  but  her  honor. 

Gentlemen  of  the  jury,  this  Christian  minister  by  profession, 
swears  positively  that  his  brother  did  not  write  these  letters.  But 
does  he  not  stand  before  this  court,  before  this  jury,  before  the 
world,  and  before  God,  convicted,  upon  his  own  testimony,  of  sup- 
pressing the  very  evidence  which  would  have  settled  that  question 
forever?  There  is  but  one  conclusion  to  be  drawn  from  this  fact. 
These  two  absent  witnesses  would  have  sustained  Louisa  Devlin ; 
and  Dr.  Burroughs  and  this  prosecution  knew  it.  They  would 
have  described  the  deceased  here  in  this  court  as  they  did  in  Chi- 
cago. This  is  no  forced  assumption  of  mine.  It  is  a  well-settled 
conclusion  of  law.  The  suppression  of  evidence  is  a  grave  and 
almost  conclusive  presumption  against  the  party  that  resorts  to  it. 
This  is  more  especially  true  when,  as  in  this  case,  the  prosecution 
is  sustained  by  the  treasury  of  the  Government  in  enforcing  the 
attendance  of  witnesses.  What  is  the  object  of  a  trial  in  a  court 
of  justice  ?  We  are  here  in  search  of  truth.  We  have,  each  one 
of  us,  under  the  solemnities  of  an  oath,  invoked  the  name  and  help 
of  God  in  the  discharge  of  that  duty.  We  stand  on  holy  ground. 
Life,  life,  that  mysterious  gift  of  the  Creator,  is  the  issue  at  stake. 
Its  awful  import  should  inspire  every  breast  with  a  religious  desire 
to  aid  this  court  and  jury  in  arriving,  if  possible,  at  the  exact  truth. 


TRIAL  OF  MARY  HARRIS.  87 

Then,  what  shall  be  said  of  one  who  admits  he  has  done  so  ?  I 
learn  that  it  is  said  that  no  attack  can  injure  Dr.  Burroughs;  that 
his  position  is  so  exalted  that  no  shaft  can  reach  him.  I  have  no 
desire  to  indulge  in  personal  assaults;  but  no  position  in  life,  no 
assumption  of  superior  piety  and  virtue,  will  ever  shield  the  char- 
acter of  a  witness  who,  in  a  trial  involving  life  itself,  conceals 
material  evidence,  and  then  attempts  to  supply  its  place  by  his  own 
unsupported  oath.  Nor  need  counsel,  in  such  an  instance,  waste 
their  time  in  denunciation,  for  no  language  which  our  tongue  could 
utter  could  paint  his  conduct  in  colors  so  dark,  in  a  moral  deform- 
ity so  hideous,  as  he  himself  has  painted  it  by  his  own  testimony. 
Such  a  witness  becomes  at  once  powerless  for  evil  before  an  intel- 
ligent jury.  He  is  dead  by  his  own  act. 

It  will  be  asked,  however,  what  motive  Burroughs  had  to  thus 
compass  the  destruction  of  one  whose  image,  if  he  was  human, 
mnst  have  been  blended  with  his  tenderest  memories,  with  the  most 
sacred  associations  of  his  heart.  A  refuge  will  be  sought  in  this 
inquiry,  from  the  irresistible  pressure  of  the  proof  which  thus  far 
shatters  all  the  assumptions  and  theories  of  the  prosecution.  Why — 
why  did  he  do  this  deed  without  a  name  for  cruelty  and  perfidy  ? 
You  will  be  told  that  all  the  actions  of  sane  people  have  their  intel- 
ligent reasons.  This  is  true;  and  the  history  of  this  case  gives  a 
ready,  an  instant  answer  to  this  inquiry.  His  motive  was  not  the 
gratification  of  passion.  Lust  was  not  one  of  the  elements  in  his 
calculations.  Base  and  wretched  as  are  such  motives  of  action, 
yet,  if  it  be  possible,  those  that  actuated  Burroughs  were  still  lower 
and  more  depraved.  Look  calmly  at  his  situation.  From  Mary 
Harris  he  was  about  turning  away  without  a  word.  He  knew  that 
such  an  act  would  be  to  her  as  appalling  as  the  voice  of  doom 
His  conscience  made  him  a  coward.  He  could  not  face  her  with 
the  story  of  his  stupendous  crime.  He  could  not  look  into  her 
confiding  eye  and  tell  her  that  his  whole  life  towards  her  had  been 
one  mighty  falsehood.  Human  nature,  however  depraved,  was  not 
equal  to  such  a  task.  The  past  was  filled  with  voices  of  reproach 
and  terror  to  his  guilty  heart.  The  future  frowned  on  him  full  of 
menace  and  warning.  The  present  was  haunted  by  a  sense  of  con- 
scious wrong  from  which  he  tried  in  vain  to  escape.  He  knew, 
too,  that  he  was  in  her  power.  These  letters  which  are  here  in 
court,  and  many  others  not  here,  arose  in  his  memory.  He  recalled 
that  one  in  which  he  says:  "And  Mollie,  if  from  any  reason  what- 
ever I  may  change  my  views  or  feelings  towards  you,  and  I  should 
feel  like  entering  into  a  matrimonial  alliance  with  any  one  else  than 
yourself,  I  will  promptly  advise  you  of  it."  He  was  about  taking 


88  MODERN  JURY  TRIALS. 

that  fatal  step,  but  he  had  not  the  manly  honor  to  fulfill  his  prom- 
ise. He,  however,  like  one  who  plans  the  commission  of  a  crime, 
took  measures  for  his  escape.  He  was  to  be  married  in  a  few  days 
to  the  unhappy  lady  who  now  mourns  in  her  widowed  home,  and 
whose  melancholy  fate  I  deeply  commiserate;  and  he  knew  that, 
when  that  fact  reached  the  ears  of  Mary  Harris,  her  cries,  her  sobs, 
her  voice  of  wailing  would  ascend  like  perpetual  lamentations  in 
the  air.  She  might,  in  her  deep  distress,  utter  his  name  to  the 
world  in  such  a  way  as  to  stain  his  character  as  a  Christian. 
She  might  come  near  him  some  day,  and  remind  him  that  he 
once  took  a  child  from  her  parents'  roof,  and  broke  her  heart. 
Aye,  it  was  in  her  power  to  denounce  him  as  false  and  infamous  at 
all  time  and  places,  to  pursue  him,  if  she  desired,  as  an  avenging 
shadow,  to  rob  him  of  peace,  and  to  turn  his  days  and  nights  into 
fear  and  alarm.  But  if  her  foot  once  crossed  the  threshold  of 
shame  she  was  in  the  fowler's  snare  and  at  his  mercy. 

This  evidence  can  have  but  one  purpose.  It  aims  at  the  life  of 
the  prisoner.  It  in  no  wise  touches  the  character  of  the  deceased. 
It  is  a  bold  demand  upon  the  part  of  Dr.  Burroughs  for  blood.  It 
is  the  key  which  unlocks  and  reveals  the  meaning  of  his  presence, 
and  of  all  his  evidence  in  this  case.  O!  spirit  of  eternal  justice, 
what  more  is  this  poor,  shivering  victim  of  man's  cruel  perfidy  to 
suffer!  Is  it  not  enough  that  one  drove  her  mad,  and  caused  her  to 
cry  out — 

"lam  bound 

Upon  a  wheel  of  fire,  that  mine  own  tears 
Do  scald  like  molten  lead  ? " 

And  must  the  brother  come  now,  and  struggle  to  drag  this  wan, 
emaciated  and  stricken  being  to  an  awful  and  ignominious  death  ? 
Is  he  not  satisfied  with  the  ruin  already  wrought  ?  Are  you  not 
ready  to  exclaim,  "Spare  her,  Dr.  Burroughs;  oh!  spare  her.  Spare 
her  for  the  sake  of  the  name  you  bear.  Enough  she  has  suffered 
in  that  name.  For  the  love  of  God  and  for  the  sake  of  His  mercies 
spare  her  broken  life.  Do  not  press  and  trample  on  the  fallen  and 
undone.  She  may  meet  you  no  more  in  this  world.  You  may  for- 
get her  mortal  agonies  in  the  honeyed  commendations  of  your  fol- 
lowers. But  there  comes  a  day  when  the  one  who  murdered  her 
peace,  and  the  one  who  now  seeks  to  murder  her  life,  will  both 
meet  their  victim  in  the  presence  of  the  Great  Judge,  and  in  a 
court  above  the  sun,  where  misfortune  is  not  a  crime,  and  where 
earthly  distinctions  fade  away;  where  the  poor  are  rich,  and  the 
merciful  blessed;  where  the  feeble  are  strong,  and  the  oppressor's 
rod  is  broken;  and  in  that  awful  presence  they  will  be  called  to 


TRIAL  OF  MARY  HARRIS.  89 

(answer  why,  at  their  hands,  Mary  Harris  was  beaten  and  scourged 
to  madness  and  death.  Spare  her;  oh!  spare  her!  lest,  if  you  suc- 
ceed in  your  purpose  to  slay  her  here,  she  will  confront  you  in  the 
eternal  world  as  a  bright  angel,  with  her  fair  hair  dabbled  in  her 
own  innocent  blood,  shed  by  your  hand,  and  there  shriek  into  your 
shrinking  ear,  'False,  fleeting,  and  perjured! '" 

Alas!  how  often  the  great  rules  of  right — eternal  and  unchange- 
able right — are  perverted  in  man's  administration  of  justice!  How 
otten  the  accused  should  be  the  accuser!  How  often  the  unoffend- 
ing sufferer  bears  the  punishment  due  alone  to  others!  What  a 
scene  is  this  in  which  we  are  all  engaged!  Here,  before  you,  sits 
one  of  the  feeblest  and  saddest  beings  ever  born  of  woman — a 
mere  helpless  atom,  buffeted  and  driven  here  by  angry  and 
malignant  winds.  The  babe  in  its  mother's  arms  was  never  more 
unconscious  of  the  evil  purposes  of  crime,  than  the  heart  of  this 
pale  and  wasted  prisoner.  Yet  the  freezing  terrors  of  the  law  sur- 
round her  on  all  sides;  the  judge  upon  the  bench,  with  wise  and 
patient  calmness  elucidating  its  principles;  this  jury,  listening  to 
the  stoi-y  of  her  blighted  life,  and  solemnly  weighing  the  evidence; 
this  crowded  and  anxious  audience  watching  the  result;  and  men, 
bearded  men,  earnestly  discussing  the  issue,  whether  she  may  live 
or  die!  And  why  all  this?  Because,  as  she  said  to  you  [turning 
to  Mr.  Bradley],  "I  have  been  beaten  and  scourged  without 
cause."  Yes;  bruised,  maimed  and  mangled,  until  the  divine  gift 
of  human  reason  gave  way,  utterly  powerless,  with  less  than  the 
instinct  of  the  poorest  worm,  that  resents  in  blindness  the  heel 
that  tramples  it  to  dust.  And  yet  this  is  the  being  against  whom 
we  are  to  listen  to  a  hue  and  cry  as  if  she  were  a  monster,  a  Borgia, 
or  a  Hecuba ! 

Gentlemen,  I  sometimes  tire  of  life  when  I  see  wrong  and  injus- 
tice spreading  their  prosperous  branches  as  the  green  and  flourish- 
ing palm;  when  those  by  whom  offenses  come  in  this  world,  who 
prey  upon  virtue  and  turn  it  into  vice,  who  sport  with  innocence  in 
order  to  poison  it,  who  make  a  mockery  of  love  and  a  plaything  of 
truth,  go  not  only  unscathed  of  the  law,  but  even  applauded  by  the 
Lired  panderers  to  a  depraved  and  debauched  public  sentiment. 
Whatever  of  philosophy  I  have  takes  a  painful  and  gloomy  form, 
and  I  feel  that  I  could  say  with  the  great  dramatist: 

"  Out,  brief  candle, 

Life's  but  a  walking  shadow;  a  poor  player 
That  struts  and  frets  his  hour  upon  the  stage, 
And  then  is  heard  no  more;  a  tale  told  by  an  idiot* 
Full  of  sound  and  fury,  signifying  nothing." 


90  MODERN  JURY  TRIAIA 

We  behold,  for  once,  at  least,  in  our  lives,  a  human  being  totally 
transformed.  The  change  is  complete  in  every  respect.  Phys- 
ically, she  is  no  longer  the  same.  Her  former  buoyant  health 
withers  away.  The  bloom  of  her  face  dies  out,  as  it  were,  in  a 
single  night.  Her  already  slight  frame  becomes  still  slighter. 
Sleep,  the  gentle  nurse  in  whose  arms  the  peaceful  invalid  wooes 
the  returning  spirit  of  health,  fled  from  her  eyes.  Burroughs  had 
murdered  sleep;  and  her  mind  was  fixed  with  an  appalling  intensity 
on  the  memory  of  the  past,  which  was  to  her  brain  as  a  consuming 
fire.  From  this  horrible  spell  there  was  no  escape. 

No;  and  hence  we  see  her  mind  developing  its  changes  in  equal 
pace  with  her  body.  It  is  the  seat  of  the  canker,  which  blighted 
her  whole  system,  and  which  no  medicinal  balm  can  reach.  There 
was  lodged  that  perilous  stuff  which  no  drug  can  purge  from  the 
distracted  breast.  According  to  the  evidence,  she  was  up  to  that 
period  the  merriest  and  the  most  joyous  of  her  circle.  The  world, 
the  glad  earth,  the  opening  day,  the  bending  sky,  and  the  kind 
faces  of  friends,  were  all  beautiful  to  her,  and  she  enjoyed  the  few 
years  of  her  unclouded  happiness.  But  now  the  laugh  was  gone; 
no  merriment  kindled  in  her  eye;  the  future  to  her  was  dead;  she 
lived  in  the  past  and  it  was  the  charnel-house  of  all  her  hopes,  and 
over  it  hung  the  mourning  cypress.  I  am  reading  her  condition  to 
you  by  the  light  of  the  evidence  alone.  I  am  showing  you  that 
effects  were  following  causes.  She  grew  weary  of  life.  Who 
does  not,  when  all  that  gives  life  its  value  has  perished  ?  This  is, 
in  itself,  one  of  the  incipient  stages  of  insanity.  It  is  the  offspring 
of  that  "  Black  Melancholy  "  which  all  authors  designate  as  one  of 
the  parent  springs  of  madness.  And  when  this  defendant  rose  that 
morning  from  her  bed,  and  murmured  her  farewell  to  the  friend, 
whom  she  supposed  to  be  asleep,  had  she  succeeded  in  taking  her 
"walk  by  the  lake  shore,"  in  the  darkness  before  daybreak,  she 
never  would  have  been  here  on  trial.  The  winds  and  waves  would 
have  sung  her  requiem.  There  might  have  been  an  inquest,  and 
the  usual  verdict. 

[Counsel  cited  many  authorities  and  read  from  experts'  testi- 
mony at  considerable  length,  and  concluded]: 

Here,  then,  is  the  whole  defense  established  by  the  highest  evi- 
dence known  to  the  law.  The  opinion  of  an  expert  is  a  fact  in  the 
case.  No  other  witness  can  give  any  opinion  at  all.  Dr.  Nichols, 
therefore,  proves  as  a  fact  that,  from  moral  and  physical  causes 
combined,  the  defendant  has  labored  under  paroxysmal  insanity. 


TRIAL  OP  MARY  HARRIS.  91 

and  that  the  act  for  which  she  is  now  on  trial  was  committed 
during  a  paroxysm,  and  under  an  insane  impulse.  You  have  n'u 
legal  right  to  find  a  verdict  contrary  to  the  testimony  of  Dr. 
Nichols,  unless  he  is  unworthy  of  belief,  or  has  been  successfully 
contradicted  by  other  competent  witnesses,  whose  opinions  are 
entitled  to  greater  weight  than  you  attach  to  his.  On  this  propo- 
sition I  rest  securely.  And  on  the  uncontradicted  statement  of 
this  scientific  witness,  I  risk  the  life  of  the  prisoner.  He  is  the 
Saint  Peter  of  my  faith,  and  on  this  rock  I  build  the  defense;  and 
neither  the  power  of  the  public  prosecution  nor  the  gates  of  pri- 
vate malice  shall  prevail  against  it. 

But  we  are  met  at  this  point  with  a  proposition  by  the  prosecu- 
tion which  I  undertake  to  say  is  without  a  parallel  in  the  courts  of 
any  country  which  has  been  blessed  with  the  light  of  civilization. 
Utterly  borne  down  and  crushed  by  the  evidence  of  Dr.  Nichols, 
the  gentlemen  who  represent  the  Government  boldly  and  without 
a  blush  declare  that  the  opinions  of  men  who,  like  him,  have  given 
their  lives  to  the  study  of  the  mind  in  all  its  various  and  mysteri- 
ous phases,  are  less  reliable  in  the  discovery  of  insanity  than  the 
opinions  of  those  who  have  bestowed  no  particular  attention  on 
this  great  and  difficult  subject.  The  cry  of  "  mad  doctors  "  has 
been  raised,  and  we  heard  an  appeal  against  them  in  favor  of  what 
were  styled  "common  sense  doctors."  Gentlemen,  I  feel  humili- 
ated that  I  have  listened  to  such  language  from  such  a  source.  Is 
there  such  an  unappeasable  rage  to  take  the  poor  life  of  this  pris- 
oner that,  in  order  to  do  it,  these  distinguished  gentlemen  are  will- 
ing to  resort  to  the  lowest  and  most  pernicious  arts  of  the  profes- 
sion? Do  they  propose  to  deride  the  disciples  of  learning,  the 
devotees  of  science?  Will  they  stand  up  here  in  the  noonday  of 
human  progress  and  enter  the  lists  as  the  avowed  champions  of 
ignorance  ?  Who  are  the  "  mad  doctors  "  of  the  world  at  whom 
this  persistent  and  systematic  sneer  is  levelled  ?  They  are  those 
who  have  made  the  subject  of  insanity  a  specialty,  who  have  given 
their  days  and  nights  to  incessant  and  laborious  thought,  who  have 
struggled  with  painful  toil  to  alleviate  the  direst  woes  of  their  fellow 
men,  to  cure  those  wounds  which  the  lash  of  misfortune  inflicts, 
and  to  pluck  from  the  diseased  mind  its  rooted  sorrows.  And  is  it 
found  necessary  to  stamp  such  characters  with  odium  in  order  to 
convict  Mary  Harris?  Shall  we  pluck  from  the  scientific  heavens 
their  brightest  and  boldest  luminaries,  and  accept  darkness,  gloom, 
and  mist  again  ?  Shall  we  strike  down  that  blazing  galaxy  of 
genius,  toil,  and  progress,  where  the  names  of  Winslow,  Esquirol, 
Ray,  Gall,  Spurzheim,  Rush,  Coinbe,  Prichard,  Ellis,  Hoffbauer, 


92  MODERN  JURY  TRIAL& 

with  others  of  the  shining  host,  are  burning  as  stars  on  the  front 
of  the  sky;  and  into  whose  glorious  companionship  we  anticipate 
but  a  few  years  by  introducing  now  the  name  of  Dr.  Nichols  him- 
self? These  are  they  against  whom  the  prosecutors  invoice  the 
aid  of  ignorance  and  prejudice.  They  have  certainly  mistaken  the 
age  in  which  they  live.  The  district  attorney  is  nearly  two  cen- 
turies in  the  rear  of  the  still  advancing  column  of  human  improve- 
ment. There  was  a  period  in  the  world's  history  when  this  assault 
on  men  of  science  would  have  relaxed  the  dull  features  of  stupidity 
into  a  smile  and  caused  blind  superstition  to  nod  its  ugly  head 
with  approval.  There  was  a  time  when  darkness  rested  upon  the 
face  of  the  waters  in  the  scientific  world,  when  the  voice  of  learn- 
ing had  not  yet  brought  order  out  of  chaos,  when  courts  of  justice 
were  nurseries  of  bigotry,  when  mental  derangement  was  judicially 
interpreted  as  the  possession  of  a  demon,  and  the  sufferer  declared 
to  be  in  familiar  communion  with  the  Prince  of  Evil. 

We  hear  much  said  in  regard  to  the  defense  of  insanity.  Many 
speak  of  it  as  a  plea  manufactured  by  counsel  It  is,  however,  in 
one  vital  respect,  like  all  others — it  must  be  supported  by  proof  or 
it  falls  to  the  ground.  Have  we  manufactured  the  positive  and 
direct  testimony  of  every  medical  witness  introduced  on  both  sides  ? 
le  this  our  handiwork?  I  submit  to  you  and  to  the  candid  judg- 
ment of  the  country,  that  if  Mary  Harris  can  be  convicted  under 
this  evidence,  if  Dr.  Nichols  can  be  broken  down  in  this  court,  not 
by  contradiction,  but  by  declamatory  appeals  to  prejudice,  and  if 
finally,  the  unbroken  chain  of  scientific  testimony  can  be  put  aside 
as  naught,  then  the  great  and  settled  principles  of  medical  juris- 
prudence are  a  delusion  and  a  snare,  and  the  infirmities  of  the 
intellect,  occasioned  by  misfortune,  constitute  no  defense  for  vio- 
lent and  irrational  conduct. 

And  why,  without  one  solitary  witness  to  support  their  theory 
of  the  iase,  do  the  prosecutors  so  hunger  and  thirst  for  the  convic- 
tion of  this  most  desolate  and  bereaved  of  sorrowing  mortals? 
Why  do  they  clamor  so  fiercely  against  the  barriers  of  the  law  ana 
of  the  evidence  which  encompass  her  about,  in  order  to  drag  that 
sick  and  fragile  body  to  a  miserable  death  ?  Is  it  punishment  they 
seek  ?  She  has  suffered  more  already  than  the  King  of  terrors  in 
his  most  frightful  form  can  inflict.  If  she  had  been  broken  on  the 
wheel,  her  limbs  disjointed,  and  her  flesh  torn  in  piecemeal  by  the 
most  fiendish  skill  of  the  executioner,  her  tortures  would  have  been 
merciful  compared  to  the  racking  which  sunders  into  fragments  the 
immortal  mind.  There  is  no  arrow  in  Death's  full  quiver  that  can 


TRIAL  OF  MARY  HARRIS.  93 

give  this  young  breast  a  new  sensation  of  agony.  She  has  sounded 
all  the  depths  and  shoals  of  misery  and  pain.  She  has  lived  in 

•*  A  whirling  gulf  of  phantasy  and  flame." 

Restore  her  by  your  verdict  to  the  soothing  influence  of  friends,  of 
home.  Let  her  go  and  lay  her  aching  head  on  the  maternal  bosom 
of  that  Church  which  for  eighteen  centuries  has  tenderly  minis- 
tered to  her  children  in  distress.  Let  her  go  and  seek,  in  the  love 
and  mercy  of  the  Father  of  us  all,  consolation  for  the  cruelty  and 
inhumanity  of  man.  *  *  * 

But  it  is  claimed  that  a  conviction  must  be  had  for  the  sake  of 
example.  You  have  been  told  that  the  people  of  the  District  ot 
Columbia  demand  it.  I  would  not  bring  such  an  argument  into 
court,  but  when  here  I  will  meet  it.  If  it  be  true  that  you  desire 
examples  for  the  correction  of  vice  and  the  preservation  of  moral 
ity,  I  pray  you  not  to  commence  with  the  humblest,  the  feeblest, 
and  the  most  helpless.  But  I  deny  that  the  condemnation  of  the 
defendant  is  demanded  by  the  people  of  this  capital.  Who  are 
they  who  ask  her  blood  at  your  hands  ?  I  know  this  people,  and 
to  some  extent  I  think  I  may  speak  for  them.  I  have  been  the 
recipient  of  their  constant  kindness  while  in  their  midst,  and  as  a 
representative  in  Congress  I  have,  in  return,  dealt  with  them  in  a 
spirit  of  liberality  whenever  I  have  known  their  wishes.  You  were 
told  that  the  defendant  came  here  from  a  distance — that  the  States 
were  pouring  their  criminals  in  upon  you,  and  therefore  she  must 
suffer  as  a  warning  to  others.  Such  a  statement  is  unjust  to  your 
people.  You  want  justice,  and  justice  alone,  administered  upon 
all;  and  who  believes  that  this  girl's  life  is  required  as  an  offering 
upon  the  altar  of  public  justice  ?  I  repel  this  imputation  upon  the 
intelligence  and  humanity  of  this  kind  and  hospitable  district. 
When  you  are  discharged  from  your  protracted  confinement  and 
return  to  your  homes,  as  you  will  in  a  few  hours,  ask  those  whom 
you  meet  there,  whether  they  desired  you  to  cut  the  feeble  thread 
of  this  girl's  life  by  your  verdict.  I  will  abide  by  their  answer. 
To  no  one  has  she  appeared  as  the  criminal,  save  to  those  who  con 
duct  and  inspire  the  prosecution.  To  all  others  in  your  midst  she 
has  presented  the  sad  spectacle  of  calamity  and  misery.  Her 
purity,  her  gentleness,  her  guileless  ttruth,  shining  out  in  every 
word  and  act,  have  won  to  her  side  in  this  dark  hour,  your  oldest, 
your  best,  and  most  honored  citizens.  Her  prison  abode  has  been 
brightened  by  the  presence  of  the  noblest  and  purest  of  her  own 
sex,  and  delicate  flowers  from  the  loftiest  station  in  the  world  have 


94  MODERN  JURY  TRIALS. 

mingled  their  odors  with  the  breath  of  her  captivity.*  Men  ven- 
erable in  years,  and  strong  in  their  convictions  of  the  principles  of 
immutable  right,  have  been  drawn  to  her  assistance  by  an  instinc- 
tive obedience  to  the  voice  of  God  commanding  them  to  succor 
the  weak,  lift  up  the  fallen,  and  alleviate  the  distress  of  innocence. 
And  now  for  Mary  Harris,  and  in  the  name  of  Him  who  showered 
His  blessing  on  the  merciful,  who  spoke  the  parable  of  the  Samari- 
tan, who  gave  the  promise  to  those  who  feed  and  clothe  the 
stranger  in  their  gates,  and  who  visit  the  sick  and  them  that  are 
in  prison,  I  thank  the  people  of  the  capital.  Add  one  more  obli- 
gation for  her  to  remember,  until  the  gra,ve  opens  to  hide  her  from 
the  world.  It  is  in  your  hands  to  grant.  The  law  in  its  grave 
majesty  approves  the  act.  The  evidence  with  an  unbroken  voice 
demands  it.  Your  own  hearts  press  forward  to  the  discharge  of  a 
most  gracious  duty.  The  hour  is  almost  at  hand  for  its  perform- 
ance. Unlock  the  door  of  her  prison,  and  bid  her  bathe  her  throb- 
bing brow  once  more  in  the  healing  air  of  liberty.  Let  your  ver- 
dict be  the  champion  of  law,  of  morality,  of  science.  Let  it  vindi- 
cate civilization  and  humanity,  justice  and  mercy. 

Appealing  to  the  Searcher  of  all  hearts,  to  that  omnipresent  eye 
which  beholds  ivery  secret  thought,  for  the  integrity  of  my  motives 
in  the  conduct  of  this  cause,  and  for  the  sincerity  of  my  belief  in 
the  principles  which  I  have  announced,  I  now,  with  unwavering 
confidence  in  the  triumph  of  innocence,  surrender  all  into  your 
hands. 

CLOSING  REMARKS  OP  DISTRICT- ATTORNEY  CARRINGTON. 

GENTLEMEN  OF  THE  JTTRT — You  see  before  you  on  trial  a  woman. 
It  is  a  case  somewhat  unprecedented  in  the  history  of  this  tribunal. 
I  plead  the  cause  of  woman.  Go  to  yonder  churchyard.  See  that 
mother  weeping  over  the  honored  grave  of  her  only  boy.  He  has 
fallen  in  his  country's  cause.  Who  is  she  ?  Nobody,  in  compari- 
son with  Mary  Harris,  the  heorine  of  the  day.  See  that  wife  dif- 
fusing life,  light,  joy,  and  hope  around  the  family  circle — the  idol 
of  a  husband's  heart  and  the  guardian  angel  of  her  children.  Her 
little  curly-headed  girl  is  kneeling  by  her  side,  and  repeating  her 
evening  or  morning  prayer.  Rise  from  your  knees,  my  pretty 
child;  you  are  wrong.  When  your  little  heart  is  wrung,  don't  go, 
as  your  hymn-book  says,  and  tell  Jesus.  Arm  yourself  with  a 

•  It  may  not  be  Improper  to  state  that  Mr.  Voorhees  here  alludes  to  a  beautiful  bouquet 
•ent  to  the  prisoner  by  Mrs.  Lincoln,  before  the  White  House  had  been  darkened  by  mur- 
der, the  center  flower  of  which  signified,  in  botanical  language,  "  Trust  in  me," 


TRIAL  OF  MARY  HARRIS.  95 

deadly  weapon,  and  avenge  your  own  wrongs  with  the  red  hand 
of  violence  and  of  crime.  Mary  Harris,  the  model  of  female  excel- 
lence, held  up  before  the  public  for  the  admiration  and  imitation 
of  our  mothers,  wives  and  daughters,  has  said  that  the  ladies  of 
Chicago  carry  deadly  weapons  and  avenge  private  wrongs,  whether 
real  or  imaginary,  by  private  means,  and  we  intend  to  introduce 
this  fashion  into  the  city  of  Washington.  Permit  me  here  to  say, 
that  if  the  voice  of  woman  could  be  heard — gentle,  lovely,  virtuous 
woman — she  would  denounce  this  slander  of  Mary  Harris  and  the 
Devlins  as  an  insult  to  every  honest  and  virtuous  lady  in  the  land. 
I  yield  to  no  living  man  in  admiration  for  true  female  character.  I 
have  known  the  inexpressible  tenderness  of  a  wife's,  sister's,  and  a 
mother's  love.  You  have  all.  We  each  have  seen  the  noblest 
exhibition  of  true  female  character  during  the  unhappy  strife  which 
has  existed  in  our  country  for  the  last  four  years.  Did  you  ever  go 
to  yonder  hospital  ?  See  that  young  man.  He  is  pale,  attenuated, 
and  emaciated.  He  has  received  some  terrible  wound,  while  fight- 
ing in  his  country's  cause.  He  is  far  away  from  family  and  friends. 
The  agents  of  the  Government  are  doing  all  that  humanity  and 
duty  can  suggest  for  his  comfort  and  relief,  but  he  is  not  satisfied. 
No  kind  mother  stands  by  his  bedside  to  cool  the  fevered  brow. 
But  hark!  He  hears  woman's  gentle  voice,  perhaps  one  which  he 
has  never  heard  before,  but  it  is  woman's  voice.  It  falls  upon  his 
ear  like  the  name  of  home  in  some  distant  land,  or  rain-drops  in  a 
thirsty  desert.  She  administers  to  his  wants,  and  whispers  words 
of  comfort  and  of  consolation.  He  revives;  he  shoulders  his  mus- 
ket and  strikes  another  blow  for  his  government  and  his  flag.  Per- 
haps his  last  hour  has  come.  Ever  faithful,  gentle  woman,  points 
him  to  a  Saviour's  dying  love;  and  as  the  world  recedes  from  his 
riew,  like  a  true  and  valiant  soldier  of  the  cross,  he  triumphs  over 
death  and  the  grave.  When  the  noble  daughters  of  America  were 
kneeling  by  the  bedside  of  the  dying  soldier,  where  was  Mary 
Harris?  That  was  a  time  when  an  appeal  was  made  to  every 
woman  who  had  a  heart  to  love  her  country  and  her  race.  Where, 
then,  was  Mary  Harris,  the  model  of  female  excellence  ?  Arming 
herself  with  this  instrument  of  death,  practicing  the  use  of  deadly 
weapons,  going  in  company  with  one  of  the  Devlins  to  Quincy 
street  to  a  house  of  assignation  without  a  protector,  and  at  last 
imbruing  her  hands  in  the  blood  of  one  who  had  drawn  his  sword 
in  his  country's  cause;  and  you  are  called  upon  to  approve,  justify, 
and  applaud  this  cruel  and  bloody  deed.  Are  we  Christians  ?  Do 
we  live  in  a  Christian  age,  a  Christian  community,  and  do  we  wor- 
ship the  Prince  of  Peace  as  the  only  true  and  living  God  ?  Gen- 


96  MODERN  JURY  JURY. 

tlemen  of  the  jury,  have  you  considered  the  awful  responsibility 
that  rests  upon  you  ?  I  have,  and  I  pray  that  God  may  give  me 
grace  to  discharge  my  duty. 

Appeals  have  been  made  to  your  sympathies;  and  that  is. all,  as  I 
will  show.  Sympathy!  sympathy!  sympathy!  and  nothing  else, 
and  with  unusual  zeal  and  eloquence.  Good  Heaven!  Behold 
what  an  array  of  counsel.  In  Joseph  H.  Bradley  you  behold  the 
Ajax  Telemon  of  the  defense.  In  my  friend  William  Y.  Fendall 
you  behold  the  young,  the  ardent,  the  armorous  Tydides,  not  cast- 
ing his  javelin  at  the  Goddess  of  Love  as  she  flies  through  the  air 
on  her  way  to  heaven,  but,  with  his  armor  off,  kneeling  at  her 
feet.  [Laughter.]  In  Judge  Mason  you  behold  the  sweetly  speak- 
ing Nestor  of  the  Grecian  camp.  [Laughter.]  In  Judge  Hughes 
the  wise,  the  prudent,  the  cautious  Ulysses.  [Renewed  laughter.] 
In  the  Hon.  Daniel  W.  Voorhees  you  behold  the  fierce,  implacable, 
irresistible  Achilles  [laughter],  and  even  old  Agamemnon  (point- 
ing to  the  judge  on  the  bench)  himself,  can  never  look  at  the  gen- 
tle sufferer  without  a  sigh  expressive  of  his  sympathy;  and  there 
sits  the  lovely  Helen,  bathed  in  tears,  surrounded  by  her  female 
attendants,  urging  on  these  sturdy  warriors  to  deeds  of  superhu- 
man valor.  Here  I  stand,  aided  only  by  my  efficient  and  accom- 
plished assistant. 

Gentlemen  of  the  jury,  am  I  not  an  object  of  commiseration  ? 
I  saw  some  of  you  crying,  but  I  think  you  cried  in  the  wrong 
place.  Were  you  concerned  for  me  ?  O!  no!  gentlemen,  don't  be 
alarmed.  Courage,  gentlemen!  I  stand  clothed  in  celestial  armor, 
behind  the  broad  aegis  of  the  law,  and  their  javelins  fall  harmless 
at  my  feet.  I  hold  up  the  law,  and  thus  I  roll  back  the  tide  of 
sympathy  that  has  been  pouring  into  the  jury  box.  I  remind  you 
of  your  solemn  oaths,  and  then  you  dry  your  tears,  and  nerve  your- 
selves to  the  discharge  of  your  stern  and  solemn  duty. 

Now,  gentlemen,  as  my  friend,  Mr.  Wilson,  said,  what  do  we 
care  for  Mary  Harris  ?  So  far  as  she  is  concerned,  you  may  put 
her  in  a  bandbox  and  send  her  home  [laughter] — not  to  the  Dev- 
lins,  however— God  forbid!— [renewed  laughter] — but  to  her 
father;  and  I  will  tell  you,  before  taking  my  seat,  how  it  can  be 
done  without  doing  violence  to  any  man's  conscience. 

Gentlemen  of  the  jury,  the  curtain  rises.  The  scene  is  laid  at  a 
boarding  house  in  the  city  of  Chicago.  The  heroine  of  the  bloody 
tragedy  makes  her  appearance— a  good,  sprightly,  black-haired 
girl.  She  was  without  either  father  or  mother  at  that  time.  It  ia 
then  she  forms  the  acquaintance  of  Louisa  Devlin,  another  beauti- 
ful, charming  and  accomplished  lady.  Louisa  Devlin  invites  her 


TRIAL  OF  MARY  HARRIS.  97 

to  go  to  her  millinery  establishment.  Prompted  by  an  "  insane 
impulse,"  she  accepts  the  invitation.  [Laughter.]  What  sort  of  a 
mil  liaery  establishment  was  it  ?  I  wanted  to  find  out,  and  in  the 
most  courteous  and  respectful  manner,  for  no  one  is  more  courteous 
to  a  lady  than  myself,  I  asked  her  how  many  young  ladies  she  had 
in  her  employment.  She  threw  herself  back  on  her  dignity  and 
said,  "  That  is  my  business,  and  none  of  yours."  There  is  Mary 
Harris  in  a  millinery  establishment,  the  character  of  which  the  pro- 
prietress is  ashamed  to  describe. 

Judge  HUGHES — May  it  please  your  honor,  I  dislike  to  interrupt 
counsel,  but  where,  in  a  closing  argument,  the  evidence  is  clearly 
misstated,  an  interruption  is  not  only  tolerable,  but  it  is  the  duty 
of  counsel,  whose  client  is  affected  thereby,  to  so  interrupt.  There 
is  no  evidence  here  whatever  as  to  the  character  of  Miss  Devlin's 
house.  It  is  true  the  district  attorney  did  ask  her  how  many  per- 
sons she  employed  in  her  house,  and  she  replied,  "  That  is  my  busi- 
ness." An  appeal  was  made  to  the  court,  and  the  court  directed 
her  to  answer  the  question,  but  a  discussion  springing  up  at  the 
time,  the  question  was  lost  sight  of,  and  no  answer  was  given. 

The  DISTRICT  ATTORNEY — May  it  please  your  honor,  I  did  not 
interrupt  counsel  in  their  argument,  and  I  hope  they  will  not  in 
mine.  If  I  misstate  the  evidence,  which  your  honor  knows  I  will 
not  do  intentionally,  I  have  no  doubt  you,  sir,  will  correct  me. 

The  COURT — A  counsel,  in  the  closing  argument,  knowing  that 
there  is  no  one  to  come  after  him,  ought  to  studiously  keep  himself 
within  the  prescribed  limits,  unless  he  wants  to  be  interrupted  at 
every  stage.  He  ought  not  to  pervert  or  misstate  the  evidence — I 
do  not  mean  to  say  that  you  have  done  so  in  this  case — but  I  do 
think  that  there  is  nothing  in  the  refusal  of  Miss  Devlin  to  answer 
that  question  to  justify  the  suspicions  which  have  been  inferred  by 
the  counsel. 

The  DISTRICT  ATTORNEY — Is  that  a  question  of  law,  your  honor  ? 

The  COURT  (with  emphasis) — It  is  a  question  of  law,  sir. 

The  DISTRICT  ATTORNEY — Gentlemen,  after  the  attack  which 
has  been  made  upon  Dr.  Burroughs — 

The  COURT  (very  earnestly) — You  shall  not  retaliate  upon  Miss 
Devlin  for  an  attack  upon  Dr.  Burroughs.  You  must  confine  your- 
self to  the  legitimate  application  of  your  remarks  to  the  evidence 
of  the  Misses  Devlin.  It  is  an  abuse  of  your  position  to  make  such 
an  attack  as  that  upon  such  grounds. 

The  DISTRICT  ATTORNEY — What  had  I  said,  may  it  please  your 
honor  ? 

The  COURT — You  know,  sir. 
7 


98  MODERN  JURY  TRIALS. 

The  DISTRICT  ATTOBNEY — You  had  not  heard,  sir,  for  I  had  not 
completed  the  sentence.  What  I  intended  to  say  was  this:  That 
after  the  attack  which  had  been  made  upon  Dr.  Burroughs  by  the 
learned  counsel,  had  I  not  a  right  (they  justifying  that  attack 
upon  the  testimony  of  the  Misses  Devlin)  to  attack  her  testimony  ? 

The  COUBT — You  shall  not  retaliate  upon  the  Misses  Devlin. 
You  have  a  perfect  right  to  attack  the  Miss  Devlin's  testimony  as 
to  its  inconsistency,  either  with  itself  or  with  the  other  evidence, 
but  to  launch  out  into  such  a  latitude  of  inferences  as  that  you 
were  going  upon,  in  regard  to  the  character  of  the  house  of  the 
Misses  Devlin,  whose  reputation  has  not  been  attacked,  either  for 
truth  or  in  any  other  respect,  I  cannot  permit  it  in  a  closing  argu- 
ment. 

The  DISTRICT  ATTOBNBY — You  will  bear  in  mind,  gentlemen  of 
the  jury,  that  I  did  not  interrupt  the  learned  counsel.  You  hear*1, 
the  attack  upon  Dr.  Burroughs,  of  which  I  shall  have  something  to 
say  hereafter.  You  know  I  must  not  dare  to  lay  my  fingers  on  the 
Misses  Devlin. 

Mr.  Wilson,  assistant  district  attorney,  during  these  interrup- 
tions in  the  course  of  Mr.  Carrington's  argument,  advised  him  to 
take  his  seat.  Mr.  Carrington  said,  "  No,  I  will  complete  my  argu- 
ment." 

Mr.  CABBINQTON — Again  I  say,  and  I  will  endeavor  to  argue, 
under  the  instructions  of  the  court. 
The  COUBT — Well,  proceed. 
The  DISTBICT  ATTOBNEY — I  will  proceed. 
The  COUBT — In  order. 

1  am  aware  that  there  are  some  persons  who  have  a  prejudice  tn 
ministers  of  the  Gospel,  and  are  glad  of  an  opportunity  to  assail 
them.  And  there  are  some  persons,  also,  who  have  a  prejudice  to 
members  of  Congress.  I  will  put  a  "hypothetical  "  case. 

Upon  one  occasion  I  put  an  old  gentleman  upon  the  stand  to 
prove  the  bad  character  of  a  witness.  He  testified  that  he  was  a 
person  of  very  bad  character.  What  did  you  ever  know  or  hear 
of  him  doing  wrong  ?  Nothing  in  particular;  but  I  have  seen  him 
day  after  day,  and  night  after  night,  associating  with  members  of 
Congress  and  other  loose  characters.  (Laughter.) 

Now,  this  is  very  improper.  I  like  members  of  Congress  just  as 
well  as  other  people,  when  they  behave  themselves.  I  have  no 
prejudice  against  any  class  of  my  fellow  citizens.  You  know  my 
sentiments  on  this  subject.  I  have  for  years  been  warring  against 
sectional  feeling  and  prejudice  of  every  kind. 


TRIAL  OF  MARY  HARRIS.  99 

But,  gentlemen,  I  understand  the  object  of  the  assault,  and  I 
think  you  must  perceive  it.  These  gentlemen  know  they  cannot 
injure  Dr.  Burroughs  in  the  estimation  of  the  public,  or  in  your 
estimation,  but  they  desire  to  divert  me  from  the  prosecution  of 
Mary  Harris  to  his  defense;  to  divert  your  attention  from  the 
murderess  to  the  brother  of  the  deceased;  but  I  am  too  old  a  war- 
horse  to  be  caught  in  that  way.  What  is  the  rule  of  law,  gentle- 
men, on  this  point  ?  There  are  three  ways  of  contradicting  a  wit- 
ness. First,  by  assailing  his  reputation  for  veracity  ;  and  why 
didn't  they  attempt  that?  They  dared  not  do  it,  for  the  reason 
that  he  stood  too  high.  He  told  them  who  he  was — where  he 
could  be  found;  and  yet  not  a  witness,  male  or  female,  with  the 
host  of  friends  that  this  beautiful  murderess  has,  could  be  found  to 
assail  his  reputation  for  veracity.  The  second  mode  of  contradict- 
ing a  witness  is  by  showing  that  he  has  made  different  statements 
at  different  times  in  regard  to  the  same  transaction.  Was  not  the 
statement  of  Dr.  Burroughs  clear,  consistent,  honest  ?  He  would 
say  now  what  he  said  yesterday,  or  would  say  to-morrow.  The 
third  mode  is  by  proving  a  different  state  of  facts  by  another  wit- 
ness. What  witness  contradicted  him  ? 

(The  district  attorney  here  turned  towards  Miss  Louisa  Devlin, 
paused  for  a  moment,  and  then  said) : 

Yes,  Louisa  Devlin  !  And  how  does  she  contradict  him  ?  Why, 
in  regard  to  an  immaterial  fact;  and — you  will,  your  honor,  par- 
don me,  for  I  do  not  wish  to  go  against  the  instructions  of  the 
court — is  John  C.  Burroughs,  the  honest,  Christian  gentleman,  to 
be  denounced  in  court,  and  is  my  mouth  to  be  sealed  when  they 
rely  upon  the  testimony  of  this  Louisa  Devlin  ?  Who  is  Louisa 
Devlin  ?  When  asked  about  her  business,  her  color  would  come 
and  go.  By  her  own  admission,  she  went  to  an  assignation  house 
on  Quincy  street  on  a  fool's  errand. 

Mr.  BRADLEY. — I  must  interrupt  the  counsel  there.  Louisa  Dev- 
lin never  went  to  that  house. 

Mr.  CAREINGTON. — Jane  Devlin  did.  (Turning  to  Louisa  Dev- 
lin.) I  wonder  if  any  man  ever  called  her  ducky  [laughter],  his 
darling,  his  rosebud,  or  his  sugar-plum  ?  [Renewed  laughter  ] 
Do  you  suppose  it  would  have  given  her  paroxysmal  insanity  ? 
[Great  laughter.]  I  have  no  doubt  it  would  have  excited  her  very 
much,  for,  judging  from  her  looks,  she  ain't  used  to  it.  [Renewed 
laughter.]  And  this  is  the  woman  upon  whom  they  rely  to  con- 
tradict the  honest,  Christian  gentleman!  She  is  indeed  the  lago 
in  this  bloody  tragedy;  for  Mr.  Bradley  told  you,  in  his  opening 
address,  that  this  was  the  old  story  of  Othello.  It  was  hatred  and 


100  MODERN  JURY  TRIALS. 

jealousy  that  nrged  Mary  Harris  to  the  commission  of  this  atro 
cious  murder;  for  you  remember  she  told  her  lawyer  that  her  love 
had  turned  to  hatred.  And,  gentlemen  of  the  jury,  it  was  the 
desire  of  money  that  prompted  Louisa  Devlin  to  fire  the- jealousy 
of  this  love-sick  girl,  prep  watery  to  a  suit  for  a  breach  of  promise 
of  marriage,  expecting  to  share  the  damages,  and  I  will  prove  it 
from  the  evidence  before  taking  my  seat;  for,  notwithstanding  the 
eulogium  pronounced  upon  her,  I  say  that  she  is  a  woman  without 
delicacy,  without  refinement  and  sensibility,  for  during  this  trial 
she  has  sat  here  giggling  while  her  friend  was  on  trial  for  her  life, 
as  though  she  were  on  a  debauch  in  Quincy  street,  Chicago,  at  the 
house  of  Ellen  Mills. 

Mr.  BRADLEY. — May  it  please  your  Honor,  I  denounce  such  an 
accusation  in  the  strongest  terms  that  man  can.  There  has  not 
been  one  word  of  reproach  cast  upon  Miss  Devlin  from  the  begin- 
ning to  the  end  of  this  trial,  and  I  do  say  that  no  gentleman  would 
us.e  such  language  towards  a  woman. 

The  DISTRICT  ATTORNEY. — I  shall  not  be  betrayed  into  any 
indiscretion,  if  the  object  is  to  insult  me.  I  have  only  discharged 
my  duty  as  in  my  humble  judgment  seemed  proper.  I  make  the 
same  remark  in  regard  to  the  attack  upon  Dr.  Burroughs. 

Mr.  BRADLEY — I  do  not  wish  to  insult  you;  but  I  do  say  the 
man  who  denounces  this  woman  without  the  evidence  in  the  case 
warranting  it  trespasses  beyond  the  license  of  counsel,  and  abuses 
the  character  of  gentleman. 

The  DISTRICT  ATTORNEY. — All  I  have  to  say  is,  that  I  return  the 
insult;  your  conduct  has  been  ungentlemanly. 

Mr.  BRADLEY. — You  can  return  the  insult  as  much  as  yon  please. 
I  despise  you.  Say  what  you  please  to  the  jury,  I  shall  not  inter- 
rupt you  again.  Here  is  a  chip  on  my  head:  come  and  knock  it 
off.  [Laughter.  About  this  time  the  court  called  the  marshal.] 

[The  quarrel  with  the  court  and  side  remarks  of  district  attor- 
ney with  counsel  are  not  commended.] 

****••»* 
Prompted  by  "hatred."  Out  of  her  own  mouth  do  I  condemn 
her.  Prompted,  not  by  "  insane  impulse,"  but  by  hatred,  she  comes 
to  the  city  of  "Washington  to  institute  a  suit  for  a  breach  of  promise 
of  marriage.  She  does  not  put  her  writ  in .  the  hands  of  the  mar- 
shal, but  she  goes  in  person  to  the  Treasury  Department — let  us 
a<linit  with  the  writ  in  one  hand  and  the  pistol  in  the  other.  When 
she  arrives  there,  she  inquires  for  Mr.  Burroughs.  She  is  told  that 


TRIAL  OF  MARY  HARRIS.  101 

there  are  two  gentlemen  there  of  that  name;  and  this  woman,  who 
it  is  attempted  to  be  shown  to  you  was  insane,  says  that  she  wants 
to  see  Mr.  Adoniram  J.  Burroughs,  and  examines  the  register,  finds 
his  name,  is  shown  to  his  room,  and  looks  in.  She  does  not  fire. 
Was  that  the  best  opportunity?  No!  Mrs.  Woodbridge  was,  I 
believe,  in  a  direct  line  with  Burroughs.  She  might  have  killed 
both.  There  he  is  at  his  desk  in  the  discharge  of  official  duty. 
Old  Mrs.  Woodbridge  sitting  near  him.  She  first  sees  the  person 
and  is  prompted  to  get  up  and  ask  what  she  desires,  and  to  extend 
an  invitation  to  her  to  walk  in.  But  just  then  she  retires.  How 
far,  gentlemen  of  the  jury  ?  Down  to  that  clock,  which  has  been 
explained  to  you  in  the  testimony,  and  there  takes  her  stand.  How 
long  does  she  remain  there  ?  As  I  said  in  my  opening  address,  and 
as  appears,  I  think,  from  the  evidence,  there  was  time  to  hear  the 
ticking  of  the  clock  and  observe  the  movements  of  the  hand.  There 
was  time  for  the  clerks  to  be  discharged,  for  young  Burroughs  to 
make  his  arrangements  for  the  next  day,  and  start  on  his  way  home 
in  company  with  a  companion.  There  was  time  for  passion  to 
subside  and  reason  to  resume  its  sway.  There  was  time  for  "  insane 
impulse  "  to  pass  away,  and  the  power  of  volition  to  return.  He 
passes  b}.  She  fires  at  him  deliberately.  He  falls;  she  fires  at 
him  a  second  time,  aiming  directly  at  his  head.  Then  she  endeav- 
ors to  escape,  and  losing  her  way  feels  the  heavy  hand  of  justice 
upon  her.  She  is  arrested.  She  is  cool,  calm,  collected.  She  told 
the  officer  that  this  man  had  injured  her.  She  wanted  revenge, 
and  would  have  it  at  the  risk  of  her  life.  She  showed  no  emotion 
until  the  bleeding,  mangled  corpse  of  her  murdered  victim  is 
brought  into  her  presence.  And  this  is  evidence  of  insanity.  It 
is  evidence,  gentlemen  of  the  jury,  of  sanity.  It  is  woman's  nature 
speaking  out.  When  Lady  Macbeth  was  reproving  her  husband 
for  his  irresolution,  she  said,  "I  have  done  the  deed,  but  the  gray- 
haired  Duncan  resembled  my  father  as  he  slept."  Proud,  cruel, 
ambitious  woman.  Still  she  was  a  woman.  So  Mary  Harris,  hav- 
ing accomplished  her  purpose,  and  when  she  sees  before  her  the 
bleeding  evidence  of  her  guilt,  suffers  the  pangs  of  remorse.  This 
is  sanity.  Can  you  interpret  it  to  be  evidence  of  insanity  ? 

If  a  man  or  a  woman,  prompted  by  revenge,  can  lie  in  wait  and 
commit  a  deliberate,  willful  murder,  and  science  call  it  "insane 
impulse,"  of  course  Mr.  Bradley  will  agree  with  me  when  I  say, 
"Dissolve  society  into  its  original  elements,  raze  your  churches, 
your  courts  of  criminal  jurisprudence,  close  your  Bibles,  and  tell 
your  daughters  to  learn  to  be  marksmen,  and  to  arm  themselves 
with  a  pistol,  and  the  assassin's  dagger.  When  the  husband  goes 


102  MODERN  JURY  TRIALa 

out  to  work  for  his  daily  bread,  his  wife  should  stand  by  his  side, 
with  a  pistol  in  one  hand  and  a  bowie-knife  in  the  other,  to  protect 
him  against  the  "insane  impulse,'*  of  some  wicked  and  revengeful 
woman,  who  wishes  to  gratify  her  revenge  against  him  "perhaps 
for  some  youthful  indiscretion." 

It  is  throwing  open  the  doors  wide  to  violence  and  crime,  and  I 
ask,  "What  man  in  the  community  is  safe,  if  a  jury  so  far  mistake 
the  law  as  to  acquit  this  woman  upon  the  ground  of  "insane 
impulse  ?"  By  such  an  absurd  verdict,  you  say  to  every  wicked 
woman  in  the  city  of  Washington,  kill  a  man  for  revenge  if  you 
please,  and  then  take  care  to  tear  your  hair,  cry,  and  cut  up  a  few 
antics,  and  we  will  call  it  insane  impulse,  and  thus  we  will  not  only 
approve,  but  applaud  the  act 

******** 

Now,  I  propose  to  show  that  he  was  mistaken  in  all  these  facts. 
Then,  gentlemen,  if  I  show  the  causes  do  not  exist  upon  which  he 
bases  his  opinion,  of  course  the  effect  of  those  causes  cannot  follow 
as  he  supposes.  In  other  words,  gentlemen,  if  these  are  the  facts 
upon  which  his  opinion  rests,  and  I  show  you  that  these  facts  do 
not  appear  from  the  evidence,  the  opinion  is  hypothetical,  and  can- 
not be  regarded  by  you  in  forming  your  verdict.  He  erects  a 
superstructure  upon  these  four  stones.  I  intend  to  remove  them 
one  by  one,  and  then  the  entire  fabric  falls  to  the  ground.  First, 
then,  gentlemen,  was  there  a  marriage  contract  ?  A  marriage  con- 
tract, like  every  other  contract,  requires  the  consent  of  both  par- 
ties. I  defy  you  to  discover  a  marriage  contract  from  any  of  the 
ninety-two  letters  offered  in  evidence.  But  let  us  admit,  for  the 
sake  of  the  argument,  that  there  was  a  marriage  contract.  I  mam- 
tain  that,  if  there  was,  it  was  violated  by  the  lady  herself. 

Mr.  C^ERINGTON  here  referred  to  a  letter,  and  humorously  said. 
I  cannot  read  this  letter,  gentlemen,  perhaps,  as  it  should  be  read- 
I  saw  some  of  you  crying.  What  are  you  crying  about  ?  I  can- 
not cry.  I  will  have  to  get  my  friend,  Mr.  Bradley,  or  Judge 
Mason  to  cry  for  me. 

Mr.  BBADLBY — If  you  had  half  as  much  sensibility  as  we  have 
you  would  cry  also. 

Mr.  CAKBESGTON — Cry  for  what?  [Holding  up  the  letter.] 
Perhaps  I  committed  a  mistake,  gentlemen.  I  should  have  put 
some  one  of  these  ladies  on  the  stand  as  an  expert.  This  letter 
echoes  the  groans  of  a  discarded  and  despairing  lover.  How,  then, 
stands  the  case  ?  The  lady  discards  her  true-hearted,  honorable 
lover;  and  he,  like  a  man  of  honor,  offers  to  return  her  her  letters 
and  her  portrait,  and  try  his  fortune  in  another  quarter.  The  lady, 


TRIAL  OP  MARY  HARRIS.  103 

exercising  a  woman's  right,  in  a  spirit  of  coquettishness,  discards 
the  man  she  loves,  and  then,  fired  by  the  demon  of  jealousy,  mur- 
ders him  for  marrying  another,  her  superior  in  all  respects. 
What,  then,  is  the  opinion  of  Dr.  Nichols  worth,  when  he  assumes 
she  was  suffering  because  her  lover  had  violated  his  promise  of 
marriage  ?  I  said  in  my  opening  address,  and  I  now  repeat  it,  that 
A.  J.  Burroughs  died  without  a  stain  upon  his  honor.  Is  there 
anything  dishonorable  in  this?  Is  it  dishonorable  to  love  a  pretty 
girl  and  to  tell  her  so  ?  Then  let  him  who  is  without  sin  cast  the 
first  stone.  And  when  discarded  by  one  pretty  girl,  is  it  dishonor- 
able to  love  a  prettier  and  a  better  girl,  and  to  tell  her  so  ?  Bur- 
roughs loved  Mary  Harris  tenderly  and  devotedly,  if  these  letters 
breathe  the  spirit  of  true  love.  He  was  discarded  by  her;  and 
meeting  with  another  lady,  her  superior,  loved  her,  offered  her  his 
hand  and  heart,  and,  like  a  true-hearted  woman,  she  neither  flirted 
nor  coquetted  with  him,  but  promptly  gave  him  all  that  a  woman 
has — a  woman's  love. 

Perhaps  there  are  some  higher-law  men  upon  that  jury,  who 
have  determined  to  take  the  law  into  their  own  hands,  and  mold 
it  to  suit  their  own  views.  If  so,  it  is  my  duty  to  inform  you  that 
you  commit  the  crime  of  perjury  before  your  country  and  high 
Heaven;  for  you  have  solemnly  sworn  to  decide  this  case  accord- 
ing to  the  law  as  it  is,  and  not  as  you  think  it  ought  to  be. 

How  often  do  you  hear  this  defense  of  insanity  ?  It  is  relied  on 
in  every  desperate 'case  of  murder,  and  it  is  generally  treated  with 
contempt  by  honest  and  intelligent  jurors.  If  some  poor,  tremb- 
ling criminal  in  rags  and  tatters  should  dare  to  make  such  a 
defense  as  this,  it  would  be  hooted  out  of  court.  Why  should  a 
different  rule  be  adopted  in  the  case  of  Mary  Harris  ?  Why  was 
she  not  subjected  to  the  inspection  of  the  jury  ?  For  your  custom 
is,  when  the  defense  of  insanity  is  made  to  examine  the  prisoner 
carefully  for  yourselves.  Whenever  I  hear  this  defense  of  insan- 
ity, it  reminds  me  of  a  remark  that  was  made  to  me  by  my  prede- 
cessor, Mr.  Fendall.  He  had  just  purchased  a  book  upon  homicide. 
He  met  old  Col.  Benton  on  the  street,  when  the  latter  asked  him 
what  new  work  he  had.  He  replied,  "  Sir,  I  have  a  work  on  homi- 
cide." "Why,"  said  Col.  Benton,  "your  money  has  been  mis- 
spent. There  are  only  two  defenses  in  cases  of  homicide  in  this 
country — self-defense  and  insanity."  Col.  Benton  was  right,  gen- 
tlemen of  the  jury.  If  a  man  injures  another,  and  the  injured 
party  kills  him,  he  pleads  self-defense.  If  a  man  kills  another,  who 
has  never  injured  him,  it  is  said  that  there  was  no  motive,  and 
therefore  he  was  insane.  The  result  is,  that  skillful  counsel  may  per- 


104  MODERN  JURY  TRIAL& 

suade  judges  and  jurors,  who  have  not  the  firmness  and  intelligence 
to  discharge  their  duty,  to  give  unbridled  license  to  the  crime  of 
murder.  Put  your  foot  upon  this  nonsense  of  "  insane  impulse." 
If  you  do  not,  I  will  If  you  approve  of  this  defense  by  your  ver- 
dict, it  shall  be  against  my  earnest  and  solemn  protest.  I  now 
solemnly  protest  against  this  libel  upon  the  laws  and  religion  of 
my  country.  When  the  excitement  of  the  day  passes  off,  and 
murder,  crime,  and  blood  run  riot  in  your  city,  no  man  or  woman 
shall  say  it  was  I  who  did  it. 

It  is  true  that  Washington  juries  have  heretofore  approved  the 
redress  of  private  wrongs  by  private  means,  and  juries  have  been 
severely  censured  for  it.  I  never  complained  of  the  verdict  of  a 
jury,  and  I  intend  to  express  no  opinion  in  regard  to  your  conduct 
on  former  occasions.  Sickles — and  I  mention  his  name  with  respect, 
for  he  has  proved  to  be  a  true  patriot  and  a  gallant  soldier — mur- 
dered a  man  who  had,  or  whom  he  supposed  had,  wronged  him  in 
the  tenderest  point,  while  he  was  standing  near  his  house,  flaunting 
a  handkerchief  in  front  of  his  window,  in  a  moment  of  frenzy, 
which  might  with  some  plausibility  be  called  a  species  of  "  par- 
oxysmal insanity."  Jarboe  went  with  his  sister  into  the  presence 
of  her  seducer,  and  demanded  reparation.  He  attempted  to  draw 
a  weapon,  when  the  indignant  brother  shot  him  dead.  This,  too, 
with  some  show  of  plausibility,  might  be  called  a  case  of  "  par 
oxysmal  insanity." 

On  the  other  hand,  Daniel  Woodward  slew  his  wife  in  a  fit  of 
jealousy,  and  was  convicted,  sentenced,  and  executed.  Mary  Harris, 
from  jealousy  and  a  desire  of  revenge,  deliberately  murdered  the 
man  who  had  loved  her  and  never  wronged  her. 

Gentlemen  of  the  jury,  it  is  idle  to  close  our  eyes  to  the  truth. 
It  was  not  insanity,  either  paroxysmal,  scientific,  or  by  whatever 
name  you  may  be  pleased  to  call  it,  but  it  was  jealousy  !  jealousy  ! 
T  have  seen  a  personification  and  representation  of  the  passions 
upon  canvas — hatred,  envy,  malice,  revenge,  and  jealousy;  and  in 
this  collection  of  imaginary  demons  the  most  horrible  to  behold  is 
the  green-eyed  monster.  But  it  is  no  excuse  for  crimes.  It  never 
has  been,  and  never  can  be,  where  the  law  is  properly  adminis- 
tered. Mr.  Bradley,  in  his  opening  address,  admits  that  this  is  a 
case  of  jealousy.  You  remember  his  remark,  "It  is  the  old  story 
of  Othello."  But  there  are  marked  points  of  difference  between 
his  and  the  present  case.  Othello,  when  he  entered  the  chamber 
of  his  true  and  faithful  wife,  on  the  fatal  night  when  she  was 
doomed  to  die,  said: 


TRIAL  OP  MARY  HARRIS.  105 

"Desdomona,  have  you  prayed  to-nightf 
Yes,  my  lord. 

Bethink  you  of  any  sin  un forgiven? 
Yes,  my  lord ;  loving  you  too  well. 
Then  pray;  for  I  would  not  kill  thy  unprepared  soul." 

Not  so  with  Mary  Harris.  She  strikes  young  Burroughs  down, 
and  sends  his  soul  into  eternity  without  a  word  of  warning,  or 
time  to  breathe  a  single  prayer.  After  the  bloody  deed  was  done, 
Othello  relents,  exclaiming: 

"  If  the  world  were  one  entire  and  perfect  crystallite, 
I  would  give  it  all  to  restore  thy  precious  life." 

Not  so  with  Mary  Harris.  She  is  now  seen,  like  a  horrid  ghoul, 
burrowing  in  the  grave,  and  feeding  her  revenge  upon  the  remains 
of  her  murdered  victim;  and  through  her  counsel,  her  organ  and 
representatives,  who  speak  her  sentiments  and  represent  her  views, 
she  endeavers  to  destroy  the  reputation  of  his  only  brother,  the 
natural  guardian  and  protector  of  his  widow  and  his  orphan. 

Now,  gentlemen  of  the  jury,  I  reach  the  last  and,  indeed,  the 
only  real  defense  to  this  indictment.  I  approach  it  with  fear  and 
trembling,  for  I  do  not  see  how  I  can  meet  it  successfully,  in  view 
of  the  extraordinary,  but  powerful,  sympathy  that  has  been  elicited 
on  behalf  of  the  prisoner.  It  is  this:  That  she  is  a  pretty,  deli- 
cate, little  woman.  That  is  all.  This  is  really  the  only  defense, 
and  you  know  it.  If  you  acquit  this  woman,  it  will  be  because  she 
is  a  woman;  and  all  this  nonsense  about  insanity  and  moral  justifi- 
cation are  simply  to  afford  you  a  pretext.  It  is  said  that  she 
wanted  to  be  the  wife  of  the  deceased.  Wife,  indeed!  That  name 
is  sacred  as  heaven  itself.  It  is  associated  in  our  minds  with  all 
that  is  good,  amiable  and  attractive.  And  what  sort  of  a  wife 
would  this  woman  have  made,  who  had  the  heart  to  conceive,  and 
the  hand  to  execute,  this  bloody  deed  ?  Had  she  married,  young 
burroughs, 

"  No  heavenly  choirs  had  the  hymenean  sung." 

It  might  have  been  said,  with  more  truth  than  poetry, 

"  Nor  Hymen,  nor  the  Graces  should  preside, 
Nor  Juno  to  befriend  the  blooming  bride; 

But  Fiends,  with  funereal  bands,  the  process  led, 
A.nd  Furies  waited  at  the  genial  bed." 

When  a  man  of  honor  strains  to  his  bosom  the  woman  he  loves, 
and  calls  her  his  own,  his  darling  wife,  and  imprints  the  melting 
kiss  upon  her  matron  lips,  he  must  feel  and  know  that  she  is 

**  As  pure  as  an  icicle, 
That  hangs  from  Diana's  temple." 


106  MODERN  JURY  TRIAL& 

I  admit  that  Burroughs  once  loved  Mary  Harris.  But  she  was 
unworthy  of  his  love,  for  she  never  truly  loved  him;  while,  judg- 
ing from  these  letters,  he  loved  her  with  an  intensity  and  ardoi 
which  is  creditable  to  his  heart,  if  not  to  his  head.  These  letters 
contained  the  most  violent  protestations  of  love.  Like  Shakes- 
peare's Romeo,  young  Burroughs  was  affectionate,  demonstrative, 
and  violent  in  his  attachments,  but  honorable  and  true. 

Go  back  in  imagination,  gentlemen  of  the  jury,  twenty  years. 
Think,  each  one  of  you,  of  the  sweet  words  you  have  whispered 
into  the  ears  of  the  girl  you  love,  and  the  billet-doux  that  you  have 
written  her  in  those  halcyon  and  happy  days.  How  would  you  like 
to  have  them  exposed  to  the  vulgar  gaze  of  the  public  ?  If  such 
demonstrations  are  evidence  of  insanity,  you  and  I,  and  every  true- 
hearted  man,  should  be  dressed  in  straight  jackets,  and  turned  over 
to  the  tender  mercies  of  Dr.  Nichols,  this  propogator  of  the  new 
and  dangerous  doctrine — this  modern  philosopher  of  the  humbug  of 
"  paroxysmal  insanity." 

Let  it  not  be  said  that  eminent  criminals,  defended  by  prominent 
public  men,  may  commit  a  crime  with  impunity  in  the  Federal 
metropolis.  Why  did  not  this  prisoner,  I  repeat,  take  the  life  of 
the  deceased  in  Chicago,  if  he  injured,  or  if  she  supposed  he  had 
injured,  her?  Did  she  suppose,  as  many  do,  that  here  she  could 
gratify  her  revenge  with  impunity?  I  say  what  I  have  often  said 
before,  that  the  citizens  of  Washington  are  a  law-loving,  law- 
abiding,  and  a  religious  people,  but  it  is  a  rendezvous  for  thieves, 
murderers,  garotters  and  adventurers,  of  both  sexes  and  of  every 
variety — a  sewer  for  all  the  vices  and  immoralities  of  the  age  in 
which  we  live.  Our  only  hope  of  safety  is  in  the  firmness  and 
fidelity  of  the  judiciary.  I  plead  the  cause  of  law,  order  and  relig- 
ion; and  if  you  dishonor  the  records  of  this  court  by  an  approval 
of  this  bloody  deed,  it  shall  be  against  my  earnest  and  solemn  pro- 
test. This  is  a  central  and  a  radiating  point.  We  exert  an  influ- 
ence in  all  sections  of  this  great  confederacy.  Besides,  strangers 
judge  our  people  from  the  manners  and  customs  of  the  Federal 
metropolis.  I  charge  you,  then,  gentlemen  of  the  jury,  to  remem- 
ber the  solemnity  of  your  position,  and  take  care  how  you  outrage 
the  public  sentiment,  and  libel  the  community  of  which  you  are 
the  representatives  on  this  occasion.  I  see  what  is  passing  in  your 
minds.  I  can  read  your  thoughts.  You  pity  the  prisoner  at  the 
bar.  So  do  I.  You  wish  to  shield  her  from  the  consequences  of 
her  crime.  I  have  no  objection  to  this,  provided  the  law  is 
enforced.  How  is  it  to  be  done  ?  It  is  the  simplest  thing  in  the 
world.  The  legislature,  in  its  wisdom,  has  provided  for  such  cases. 


DEFENSE  OF  JOHN  E.  COOK.  107 

Convict  the  prisoner,  and  then  commend  her  to  the  mercy  oi  ihe 
Executive.  Do  this,  and  your  object  is  accomplished  without  vio- 
lence being  done  to  any  man's  conscience.  If  the  prisoner,  in  view 
of  all  the  circumstances,  deserves  clemency,  she  will  receive  it;  bxit 
in  my  opinion,  stern,  inflexible  justice  is  true  mercy.  I  would  have 
you  temper  justice  with  a  spirit  of  mercy,  but  I  would  not  have 
you  sacrifice  the  cause  of  justice  to  mercy.  When  man  broke 
Heaven's  high  law,  his  Creator  looked  down  upon  him  with  com- 
passion. He  would  show  him  mercy,  but  the  claims  of  justice 
must  be  vindicated;  and  in  the  counsel  of  eternity  He  determined 
to  give  His  well-beloved  and  only-begotten  Son  to  die,  that  guilty 
man  might  live,  and  by  his  imputed  righteousness  alone  we  are 
saved.  I  charge  you,  then,  in  the  same  spirit,  to  do  justice,  and 
then  remember  mercy.  You  are  now  the  great  conservators  of  the 
public  peace;  and  I  charge  you,  by  the  solemn  sanction  of  a  juror's 
oath,  in  the  eloquent  language  of  another,  "  that  adamantine  chain 
which  binds  the  integrity  of  man  to  the  throne  of  eternal  justice, 
do  your  duty  in  the  fear  of  God  and  without  the  fear  of  man." 

At  the  conclusion  of  Mr.  Carrington's  remarks  the  case  was 
given  to  the  jury.  They  then  retired  to  their  room,  where  they 
remained  about  five  minutes,  when  they  returned,  and  rendered  a 
verdict  of  "  Not  guilty." 

Thereupon  the  court  adjourned. 


DEFENSE  OF  JOHN  E.  COOK 

Extract  of  Argument  by  D.  W.  VOOBHEES,  Delivered  at  Charleston,  Va.,  Nov- 
ember 8,  1859,  upon  the  Trial  of  JOHN  E.  COOK,  indicted  for  Treason, 
Murder,  and  Inciting  Slaves  to  Rebel,  at  Harper's  Ferry  Insurrection. 

This  beautiful  and  eloquent  appeal  for  mercy  may  be  better 
understood  when  we  consider  that  Cook  had  confessed  his  crime, 
and  mercy  was  his  only  plea.  This  speech  is  said  to  be  the  great- 
est effort  of  Mr.  Voorhees'  life,  but  seems  a  little  less  elaborate, 
and  even  less  pathetic,  than  the  famous  Mary  Harris  address,  in 
another  chapter.  The  parting  with  the  jury  is  a  touching  picture 
of  rhetorical  eloquence. 


108  MODERN  JURY  TRIALS 

With  the  permission  of  the  Court : 

GENTLEMEN  OF  THE  JUBY — The  place  I  occupy  in  standing  before 
you  at  this  time  is  one  clothed  with  a  responsibility  as  weighty 
and  as  delicate  as  was  ever  assigned  an  advocate  in  behalf  of  an 
unfortunate  fellow-man.  No  language  that  I  can  employ  could 
give  an  additional  force  to  the  circumstances  by  which  I  am  sur- 
rounded, and  which  press  so  heavily  on  the  public  mind  as  well  as 
on  my  own.  I  come,  too,  as  a  stranger  to  each  one  of  you.  Your 
faces  I  know  only  by  the  common  image  we  bear  to  our  Maker; 
but  in  your  exalted  character  of  citizens  of  the  ancient  and  proud 
commonwealth  of  Virginia  and  of  th^e  American  Union,  I  bear 
to  you  a  passport  of  friendship  and  letter  of  introduction.  I  come 
from  the  sunset  side  of  your  western  mountains,  from  beyond  the 
rivers  that  now  skirt  the  borders  of  your  great  State;  but  I  come 
not  as  an  alien  to  a  foreign  land,  but  rather  as  one  who  returns  to 
the  home  of  his  ancestors  and  to  the  household  from  which  he 
sprang.  I  come  here  not  as  an  enemy,  but  as  a  friend  with  interest 
common  with  yourselves,  hoping  for  your  hopes,  and  praying  that 
the  prosperity  and  glory  of  Virginia  may  be  perpetual.  Nor  do  I 
forget  that  very  soil  on  which  I  live  in  my  Western  home  was 
once  owned  by  this  venerable  commonwealth,  as  much  as  the  soil 
on  which  I  now  stand.  Her  laws  there  once  prevailed,  and  all  her 
institutions  were  there  established  as  they  are  here.  Not  only  my 
own  State  of  Indiana,  but  also  four  other  great  States  in  the  north- 
west, stand  as  enduring  and  lofty  monuments  of  Virginia's  mag- 
nanimity and  princely  liberality.  Her  donation  to  the  general 
Government  made  them  sovereign  States;  and  since  God  gave  the 
fruitful  land  of  Canaan  to  Moses  and  Israel,  such  a  gift  of  present 
and  future  empire  has  never  been  made  to  any  people.  Coming 
from  the  bosom  of  one  of  these  States,  can  I  forget  the  fealty  and 
duty  which  I  owe  to  the  supremacy  of  your  laws,  the  sacredness  of 
your  citizenship,  or  the  sovereignty  of  your  State  ?  Rather  may 
the  child  forget  its  parent,  and  smite  with  unnatural  hand  the 
author  of  its  being. 

I  am  not  here,  gentlemen,  in  behalf  of  this  pale-faced,  fair-haired 
wanderer  from  his  home  and  the  paths  of  duty,  to  talk  to  you 
about  the  cold  technicalities  of  the  law,  born  of  laborious  analysis 
by  the  light  of  the  midnight  lamp.  I  place  him  before  you  on  no 
euch  narrow  grounds.  He  is  in  the  hands  of  friends,  who  abhorred 
the  conduct  of  which  he  has  been  guilty.  But  does  that  fact  debar 
him  of  human  sympathy  ?  Does  the  sinful  act  smite  the  erring 
brother  with  the  leprosy,  which  forbids  the  touch  of  the  hand  of 
affection  ?  Is  his  voice  of  repentance,  an  appeal  for  forgiveness, 


DEFENSE  OF  JOHN  E.  COOK.  109 

stifled  in  his  mouth?     If  so,  the  meek  Saviour  of  the  world  would 
have  recoiled  with  horror  from  Mary  Magdalene,  and  spurned  the 
repentant  sorrow  of  Peter,  who  denied  him.         *          *          * 
For  my  client  I  avow  every  sympathy. 

If  He  who  made  the  earth,  and  hung  the  sun  and  moon  and  stars 
on  high,  to  give  it  light,  and  created  man  a  joint  heir  of  eternal 
wealth,  and  put  within  him  an  immortal  spark  of  that  celestial 
flame  which  surrounds  His  throne,  could  remember  mercy  in  exe- 
cuting justice,  when  His  whole  plan  of  divine  government  was 
assailed  and  deranged ;  when  His  law  was  set  at  defiance  and  violated; 
when  the  purity  of  Eden  had  been  defiled  by  the  presence  and 
counsels  of  the  serpent — why,  so  can  you,  and  so  can  I,  when  the 
wrong  and  the  crime  stand  confessed,  and  every  attonement  is 
made  to  the  majesty  of  the  law,  which  the  prisoner  has  in  his  power 
to  make.  * 

Gentlemen,  you  have  the  case.  I  surrender  into  your  hands  the 
issues  of  life  and  death.  As  long  as  you  live,  a  more  important 
case  than  this  you'll  never  be  called  to  try.  Consider  it,  therefore, 
well  in  all  its  bearings.  I  have  tried  to  show  you  those  facts 
which  go  to  palliate  the  conduct  of  the  prisoner.  Shall  I  go  home 
and  say  that  in  justice  you  remembered  not  mercy  to  him  ?  Leave 
the  door  of  clemency  open;  do  not  shut  it  by  wholesale  conviction. 
Remember  that  life  is  an  awful  and  sacred  thing;  remember  that 
death  is  terrible — terrible  at  any  time  and  in  any  form.  But  when 
to  the  frightful  mien  of  the  grim  monster,  when  to  the  chilled  vis- 
age of  the  spirit  of  the  glass  and  scythe,  is  added  the  hated,  dreaded 
spectre  of  the  gibbet,  we  turn  shuddering  from  the  accumulated 
horror.  God  spare  this  boy  and  those  that  love  him,  from  such  a 
scene  of  woe.  I  part  from  you  now,  and  most  likely  forever. 
AVhen  we  next  meet — when  I  next  look  upon  your  faces  and  you 
on  mine — it  will  be  in  that  land  and  before  that  tribunal  where  the 
only  plea  that  will  save  you  or  me  from  a  worse  fate  than  awaits 
the  prisoner,  will  be  mercy.  Charity  is  the  paramount  virtue;  all 
else  is  a  sounding  brass  and  a  tinkling  cymbal.  Charity  suffereth 
long  and  is  kind.  Forbid  it  not  to  come  into  your  deliberations; 
and,  when  your  last  hour  comes,  the  memory  that  you  allowed  it 
to  plead  for  your  erring  brother,  John  E.  Cook,  will  brighten  your 
passage  over  the  dark  river  and  rise  by  your  side  as  an  interceding 
angel  in  that  day  when  your  trial,  as  well  as  his,  shall  be  deter- 
mined by  a  just  but  merciful  God.  I  thank  the  court  and  you, 
gentlemen,  for  your  patient  kindness,  and  I  am  done. 


HO  MODERN  JURY  TRIAL& 

THE   CONSPIRACY   CASE. 

THal  concluded  September,  1851,  at  Detroit,  McJi. 

This  remarkable  case  occupied  nearly  four  months  in  trial; 
enlisted  the  services  of  the  most  eminent  counsel,  including  Messrs 
Wm.  A.  Howard,  Jacob  M.  Howard,  Wm.  Gray  and  James  A.. 
Van  Dyke,  of  Michigan,  and  John  Van  Arman  of  Chicago, 
Senator  Wm.  H.  Seward,  of  New  York,  and  others.  Some  40  men 
were  indicted;  12  convicted  and  sentenced,  varying  from  five  to 
ten  years;  20  discharged;  two  died  in  jail.  Four  hundred  and 
ninety-five  witnesses  were  sworn,  many  from  a  distance  of  a  hundred 
miles.  The  report  of  the  trial,  including  evidence  and  arguments, 
is  in  book  form,  covering  nearly  900  pages.  Four  of  the  argu- 
ments would  cover  100  pages  each.  The  story  of  the  case,  not 
found  in  the  arguments  here  reported,  is  a  story  of  a  stupendous 
conspiracy  by  malicious  men  along  the  line  of  the  Michigan  Cen- 
tral Railroad,  to  destroy  its  property,  in  revenge  for  non-payment 
for  cattle  killed  on  its  crossings.  The  road  had  passed  from  State 
control  to  a  corporation.  The  State  had  paid  liberally  on  similar 
cases,  making  a  market  for  cattle.  Many  of  the  schemes  of  train- 
wrecking  are  most  revolting  and  terrible  to  contemplate.  The 
worst  was  to  run  a  passenger  train  into  a  bottomless  marsh  near 
Leoni.  This  failed,  by  a  freight  train  coming  at  a  slow  rate  of 
speed  in  its  stead.  The  other  scheme  was  to  burn  the  Detroit 
Depot,  which  succeeded.  It  is  attempted  here  to  give  some  of  the 
eloquent  periods  from. this  battle  of  giants. 

The  long  and  deep  public  interest  in  this  trial,  the  eminence  of 
counsel,  the  issue  investigated,  the  liberty  of  forty  men,  the 
expense  of  a  half  million  of  dollars,  the  effect  on  the  prosperity  of 
Michigan,  all  gave  an  inspiration  to  the  arguments  that  often 
reached  to  grandeur  and  sublimity.  The  selections  of  eloquent 
appeals  of  Senator  Seward  and  J.  A.  Van  Dyke  here  given,  are 
masterpieces  of  oratory,  which,  for  breadth  of  thought,  sublimity 
of  expression,  genius  of  statement,  and  forecast  of  our  country's 
future,  have  seldom  been  equalled,  if  ever  excelled,  in  modern 
court  practice.  This  is  one  reason  for  the  exception  in  going 
back  of  twenty  years,  to  form  a  report  of  modern  jury  trials  in 
the  United  States. 

JOHN  VAN  ARMAN,  then  a  rising  young  lawyer,  compara- 
tively unknown,  worked  up  the  case  for  the  people,  and  made  a 


THE  CONSPIRACY  CASE.  HI 

life-long  reputation  in  his  zeal,  skill  and  ability  exhibited.  His 
speech  is  full  of  the  fire  and  fervor  of  genius  and  originality.  It 
touches  all  the  details  of  the  conspiracy  and  contains  precedents 
from  Cicero  contending  with  Cataline  in  Rome.  It  was  a  master 
effort.  The  eloquent  closing  words  of  Senator  SEWABD  are  given, 
with  a  more  extended  argument  of  JAMES  A.  VAN  DYKE,  then  one 
of  the  leading  orators  in  the  West. 

Among  the  effective  paragraphs  of  Mr.  VAN  ARM  AN  are  these: 

GENTLEMEN — This  is  not  a  single  crime,  perpetrated  by  a  single 
hand,  proceeding  from  a  single  corrupt  heart  and  directed  against 
the  interest  and  safety  of  a  single  citizen,  but  a  long  series  of 
daring  and  dangerous  felonies,  originating  in  the  combined  pur- 
pose and  will,  and  executed  by  the  combined  strength  of  a  multi- 
tude, deeply  perilling  the  safety,  property  and  lives  of  the  whole 
public,  indicating  the  dangerous  opinions  almost  absolutely  treason- 
able and  at  war  with  social  order,  with  the  execution  of  the  laws 
of  the  land,  of  public  safety,  and  its  importance  is  enhanced  a 
hundred  fold  by  the  long  series  of  cirimes  developed  by  this  inves- 
tigation. 

The  issue  is,  whether  the  men  whose  daring,  lawless  outrages 
have,  for  two  long  years,  rendered  the  greatest  thoroughfare 
through  your  State  a  scene  of  dangei  and  death — whether  you 
have  before  you  any  of  the  persons  to  whom  the  public  owe  the 
loss  of  a  half  million  dollars,  as  well  as  the  peril  of  life  to  thou- 
sands exposed  on  the  line  of  this  railroad.  *  *  * 

[Counsel  had  reverted  to  Mr.  Van  Annan's  being  sworn  as  a  wit- 
ness; to  his  employing  spies,  to  which  he  replied  at  length,  and  of 
himself  said,  on  the  motive  of  the  prosecution]: 

I  have  a  wife  and  children;  necessity  often  calls  them  over  this 
road;  more  than  once  within  the  last  two  years  have  their  lives  been 
imperiled  and  exposed  to  imminent  danger  along  that  track,  and,  as 
I  firmly  believe,  at  the  hands  of  these  very  defendants.  The  lives 
of  my  wife  and  children  have  been  plotted  against,  threatened  on 
this  road,  by  base  and  bloody  ruffians,  and  as  God  will  judge  me  for 
the  assertion,  gentlemen,  I  believe  the  men,  the  very  men  who 
plotted  this  destruction,  sit  here  before  me.  For  the  motive  which 
prompts  me  to  pursue  them,  look  into  your  own  hearts.  *  *  * 
Is  it  disreputable  to  engage  in  ferreting  out  this  offense  ? 

I  know  of  one  standard  by  which  to  determine  the  merits  of  any 
particular  occupation,  conduct  or  employment.  That  standard  is 
utility,  whatever  is  useful  is  honorable.  This  standard  is  simple 


112  MODERN  JURY  TRIALS. 

and  practical  It  has  the  object  of  all  worthy  actions.  The  merits 
of  an  act  is  determined  by  its  effects,  not  its  appearance.  Was  it 
necessary  that  those  who  heaped  obstructions  nightly  along  that 
track  should  be  detected  and  defeated  ?  *  *  *  Did  they  give 
fair  warning  to  the  unwary  traveler  on  his  peaceful  journey 
through  the  State?  No;  under  the  darkness  of  the  night,  with 
stealthy  tread,  like  a  lurking  murderer,  they  crept  from  their 
thickets  to  place  their  dangerous  obstruction  or  hurl  their  deadly 
missiles.  As  well  may  bloodthirsty  savages  demand  the  usages  of 
honorable  warfare,  and  complain  of  ambush  and  stratagem.  In 
that  most  dangerous  conspiracy  (by  Gataline)  against  the  liberties 
of  Rome,  when  Cicero  determined  to  crush  out  the  vile  plot,  he 
employed  spies  and  soldiers  to  join  the  conspirators  and  receive  at 
their  hands  the  seal  to  the  engagement;  then  he  sent  a  band  of 
soldiers  to  capture  and  seize  them  all  together.  Men  alleged  that 
day,  as  counsel  have  here,  those  who  listened  to  the  enemy  are 
unworthy  of  credit  When  told  of  the  thunder  cloud  about  to 
burst  upon  them,  they  answered:  Men  who  will  listen  to  such  facts 
will  manufacture  facts;  that  with  respect  to  the  seal,  the  spies  had 
forged  it  But  while  they  were  thus  arguing,  Cataline.  was  form- 
ing his  camp  in  Elmira.  At  last  he  rose  in  his  place  in  the  senate 
and  said  he  would  drown  the  clamor  raised  against  him  in  the  best 
blood  of  Rome.  *  *  * 

Of  public  opinion  he  said:'  What  it  approves  to-day  it  con- 
demns to-morrow,  and  he  who  obeys  it  is  involved  in  constant 
absurdity  and  contradiction.  He  is  the  slave  of  a  fickle  and 
remorseless  tyrant;  trust  it  not,  it  will  prove  a  snare  and  a  delu- 
sion. Again,  it  is  said  this  crime  is  unnatural;  improbable  for 
lack  of  motive. 

All  crime  is  irrational,  unnatural,  because  the  true  office  of 
reason  directs  men  to  pursue  their  own  welfare.  All  crime  is 
opposed  to  reason. 

In  human  conduct  passion  always  disputes  with  human  reason. 
Often  successfully.  All  crimes  are  the  dictates  of  passion,  not  of 
reason.  To  assume  that  men  all  act  from  rational  motives  is  to 
deny  the  very  existence  of  crime.  Reason  teaches  obedience  to  the 
laws  of  nature;  yet  we  learn  from  the  records  of  the  past  that  men 
have  constantly  rebelled.  From  the  very  commencement,  man,  in 
his  earliest  footprints  upon  earth,  has  been  stained  with  a  brother's 
blood.  *  *  * 

The  effort  of  counsel  to  disgrace  these  witnesses  has  been 
unwearied  and  persevering.  They  have  tracked  them  through 
the  whole  course  of  their  lives,  seizing  with  malignant  ingenu- 


THE  CONSPIRACY  CASE.  113 

ity  every  act  that  could  support  an  accusation  or  point  a 
sarcasm.  Their  faults,  their  follies,  hare  been  rehearsed, 
their  very  misfortunes  paraded  before  you,  and  not  a  sus- 
picion ever  conceived  by  human  malignity,  or  uttered  by  the 
tongue  of  calumny  against  them,  but  has  been  revived,  collected 
and  repeated  to  you.  Indifferent  to  their  virtues,  they  treasure  up 
their  vices  and  erect  a  standard  to  judge  of  character.  So  the 
scavenger,  as  he  creeps,  with  bended  back  and  earthward  eye, 
along  your  city  streets  and  shuns  the  pleasant  spots,  the  shaded 
walks,  visiting  the  loathsome  alleys  and  gutters  for  the  foul, 
rejected  matter,  reeking,  noisome,  disgusting — gathered  from  the 
half-filled  ditch,  treasuring  only  what  is  foul!  In  all  my  experi- 
ence I  have  never  seen  a  man  so  treated.  There  is  a  class  of  men 
to  whom  this  human  hunt  is  a  pleasant  pastime — an  exciting  game. 
There  is  a  kind  of  ferocity  in  human  nature,  a  sort  of  blood-thirsti- 
ness, which  creeps  in  men  of  weakness,  who  never  attack  the 
strong;  but  no  sooner  is  a  fellow  mortal  down,  than  they  fall  upon 
and  tear  him  like  vultures  on  a  carrion — too  cowardly  to  prey  upon  the 
living,  they  will  descend  into  the  grave,  drag  out  the  carcass  from  its 
moldering  repose,  and  feed  upon  the  festering  remains.  Let  man 
be  unfortunate,  let  him  be  down,  and  they  hasten  to  this  rich 
repast.  But  there  are  two  kinds  of  men  with  which  it  is  useless 
to  make  personal  issues.  The  one  whose  character  is  too  bad  to  be 
made  worse,  the  other  so  good  that  it  cannot  be  injured !  No  rank 
or  position  can  screen  a  man  from  just  censure  due  to  wrong  and 
injustice — right,  even-handed  justice  to  all,  even  the  meanest. 
Equal  rights — fair  play,  are  the  jewels  dearest  to  the  heart  of  every 
man. 

*  *  *  Does  any  man  lack  motives  to  stimulate  loyalty  to 
our  institutions?  Let  him  consider  their  glorious  results!  Let 
him  trace  the  rapid  advance  of  her  hardy  settlers  across  this  vast 
continent,  carrying  the  successive  waves  of  daring  emigrants  far 
beyond  the  primeval  forests;  marking  out  State  after  State,  and 
annexing  them  to  the  area  of  freedom  over  the  wide  plains  of  the 
far  West,  over  the  flinty  summits  of  the  Rocky  Mountains  and^ 
through  the  gorges  of  the  Sierra  Nevada,  now  rush  the  tides  of 
emigration — a  progress  unrivaled  in  the  history  of  the  world ! 

A  little  over  a  half  century,  and  our  few,  sparsely-populated  col- 
onies bordering  the  seas  and  rivers  of  the  East,  destitute  of  wealth, 
her  rights  often  trampled  on,  her  flag  feebly  supported  by  a  hand- 
ful of  brave  men.  A  half  century  more  and  our  flag,  born  in  tri- 
umph from  the  Gulf  of  St.  Lawrence  to  the  Rio  Grande,  from  the 
Atlantic  to  the  distant  shores  of  the  mighty  Pacific!  Its  folds  are 
ft 


114  MODERN  JURY  TRIALS. 

swept  by  the  rude  gusts  that  blow  along  the  rock-bound  coast  of 
New  England,  and  fanned  by  the  gentle  breezes  that  float  over  the 
golden  sands  of  the  Sacramento  valley! 

This  industry  and  enterprise  her  sons  have  encountered,  subdued 
every  obstacle  to  their  advancement.  They  mined  their  way 
through  the  flinty  barriers  of  rock.  The  mountain  gorges  and 
deep  morass  have  been  leveled;  "while  through  every  vein  of 
this  vast  empire  flows  the  strengthening  tides  of  trade,  the  calm 
health  of  nations!"  These  glorious  achievements  of  labor,  pro- 
tected by  wholesome  laws  and  institutions;  sustained  by  thft 
unwavering  loyalty  of  her  citizens  ! 

To  that  loyalty  alone  we  owe  the  stability  of  our  institutions;  the 
prosperity  they  have  bestowed  upon  that  alone;  can  society  look 
for  protection?  To  the  best  virtue  of  good  citizens  I  confidently 
appeal  on  this  occasion  for  the  vindication  of  the  laws  of  our 
State,  the  protection  of  the  lives  of  its  citizens. 

Weighted  with  character  and  prompted,  as  if  by  inspiration, 

WM.  H.  SEWABD'S  CLOSING  WOEDS 
to  tha  jury  were: 

GENTLEMEN — In  the  middle  of  the  fourth  month,  we  draw  near  to 
what  has  seemed  to  be  an  endless  labor.  While  we  have  been 
here,  events  have  transpired  which  have  roused  national  ambition, 
kindled  national  resentment,  drawn  forth  national  sympathies,  and 
threatened  to  disturb  the  tranquility  of  empires.  He  who,  although 
He  worketh  unseen,  yet  worketh  irresistibly  and  unceasingly,  hath 
suspended  neither  His  guardian  care  nor  His  paternal  discipline 
over  ourselves.  Some  of  you  have  sickened  and  convalesced. 
Others  have  parted  with  cherished  loved  ones,  who,  removed  before 
they  had  time  to  contract  the  stain  of  earth,  were  already  prepared 
for  the  kingdom  of  Heaven.  There  have  been  changes,  too,  among 
the  unfortunate  men  whom  I  have  defended.  The  sound  of  the 
hammer  has  died  away  in  the  workshop  of  some;  the  harvests  have 
ripened  and  wasted  in  the  fields  of  others.  Want,  and  fear  and 
sorrow  have  entered  into  all  their  dwellings.  Their  own  rugged 
forms  have  drooped,  their  sunburnt  brows  blanched,  and  their 
hands  have  become  soft  to  the  pressure  of  friendship  as  yours  or 
mine. 

One  of  them — a  vagrant  boy — whom  I  found  imprisoned  here 
for  a  few  extravagant  words,  that,  perhaps,  he  never  uttered,  has 
pined  away  and  died.  Another,  he  who  wag  feared,  hated  and 
loved  most  of  all,  has  fallen  in  the  vigor  of  life,  "  hacked  down,  his 


THE  CONSPIRACY  CASE.  115 

thick,  summer  leaves  all  faded."  When  such  a  one  falls,  amid 
the  din  and  smoke  of  the  battlefield,  our  emotions  are  overpow- 
ered, suppressed,  lost  in  the  excitement  of  public  passion.  But 
when  he  perishes,  a  victim  of  social  strife;  when  we  see  the 
iron  enter  his  soul,  and  see  it,  day  by  day,  sinking  deeper  and 
deeper,  until  nature  gives  way  and  he  lies  lifeless  at  our  feet,  then 
there  is  nothing  to  check  the  flow  of  forgiveness,  compassion  and 
sympathy.  If,  in  the  moment  he  is  closing  his  eyes  o'n  earth,  he 
declares,  "I  have  committed  no  crime  against  my  country;  I  die 
a  martyr  for  the  liberty  of  speech,  and  perish  of  a  broken  heart," 
then,  indeed,  do  we  feel  that  the  tongues  of  dying  men  enforce 
attention  like  deep  harmony.  Who  has  thus  been  withdrawn  from 
our  erring  judgment  to  the  tribunal  of  eternal  justice  ?  Yet  it 
cannot  be  avoided. 

If  Abel  F.  Fitch  was  guilty  of  the  crime  in  this  indictment, 
every  man  here  may,  nevertheless,  be  innocent;  but  if  he  was  inno- 
cent, then  there  is  not  one  of  these,  his  associates,  who  can  be 
guilty.  Try  them,  then,  if  you  must;  condemn  him,  if  you  must, 
and  with  him  condemn  them.  But  remember  you  are  mortal,  and 
he  is  now  immortal;  and  that  before  thai  tribunal  where  he  stands 
you  must  stand  and  confront  him,  and  vindicate  your  judgment. 
Remember,  too,  that  he  is  now  free.  He  has  not  only  left  behind 
him  the  dungeon,  the  cell  and  the  chain,  but  he  exults  in  a 
freedom,  compared  with  which  the  liberty  we  enjoy  is  slavery  and 
bondage.  You  stand,  then,  between  the  dead  and  the  living. 
There  is  no  need  to  bespeak  the  exercise  of  your  caution,  of  your 
candor  and  of  your  impartiality.  You  will,  I  am  sure,  be  just  to 
the  living  and  true  to  your  country;  because,  under  circumstances 
so  solemn,  so  full  of  awe,  you  cannot  be  unjust  to  the  dead,  nor 
false  to  your  country,  nor  to  your  God! 

The  greatest  effort  was  reserved  for  Hon.  James  A.  Van  Dyke, 
who  crowned  a  brilliant  career  by  an  address  that  will  long  be 
admired  for  its  art,  eloquence,  and  wisdom — and  even  more — for 
its  lofty  conception  of  our  country's  future. 

Nearing  the  close  of  this  address  (which  is  reduced  from  140 
pages),  there  occurs  one  of  the  finest  pictures  in  American  liter- 
ature. It  was  an  inspiration  of  a  genius  in  the  attitude  of  fore- 
telling the  future  of  American  railroads: 

"  It  shall  speed  onward,  past  the  forests,  still  onward,  through 
the  gorges  of  the  mountains,  over  the  depths  of  the  valley,  till  the 
iron  horse,  whose  bowels  are  fire,  *  *  shall  be  heard  thunder- 
ing through  the  echoing  solitudes  of  the  Rocky  Mountains,  start- 


MODERN  JURY  TRIALS. 

ling  the  lone  Indian  from  his  wild  retreat,  and  ere  long  reaching 
the  golden  shores  of  the  far-off  Pacific,  there  to  be  welcomed  by 
the  glad  shouts  of  American  freemen,  at  the  glorious  event  which 
has  conquered  time  and  distance,  and  bound  them  by  nearer  chords 
to  older  homes  and  sister  States."] 

Mr.  VAN  DYKE,  of  Detroit,  who  closed  the  case  for  the  people,  was 
a  man  of  rare  genius.  Erect,  courteous,  dignified  in  person,  graceful 
in  speech  and  manner,  eloquent  in  voice  and  delivery,  the  soul  of 
honor — a  man  of  brilliant  intellect  and  superior  culture.  He  united 
manhood  and  oratory  with  excellent  effect.  His  tall,  well  dressed 
form,  smoothly  shaven  face  and  elegant  manner,  made  him  a  Ches- 
terfield of  the  Michigan  bar.  He  was  an  Erskine  in  style  of  oratory. 
This  was  his  greatest  life  work  with  a  jury.  He  died  in  May, 
1856,  aged  forty-three. 

Mr.  VAN  DYKE  said: 

May  it  please  the  Court  and  Gentlemen  of  the  Jury — I  cannot 
refrain  from  congratulating  you  that  the  long  and  wearisome  inves- 
tigation in  which  you  are  engaged,  is  so  near  to  its  close.  Many 
months  since,  before  the  leaves  were  green  or  the  flowers  had 
bloomed,  ere  the  spring-time  had  departed,  and  while  our  hopes 
and  feelings  moved  in  sympathy  with  the  gladdening  freshness 
which  the  season  shed  around  us,  you  were  summoned  from  your 
homes,  comforts,  business  and  pleasures,  to  assume  a  serious  respon- 
sibility, in  aid  of  the  administration  of  justice.  Since  then,  while 
we  have  associated  together,  and  day  by  day  discharged,  I  trust 
with  patience  and  fidelity,  our  toilsome,  but  solemn  duties,  time 
has  run  its  ceaseless  course;  the  summer  came  with  all  its  joy  and 
brightness;  it,  too,  has  faded  away,  and  already  the  crimson  leaves 
of  the  forest  warn  us  that  autumn  is  passing  its  withering  fingers 
over  the  face  of  nature. 

I  indulge  in  this  thought,  because  it  induces  the  mind  to  reflect 
upon  our  own  condition,  and  the  vanity  of  acting  otherwise  than 
under  a  deep  sense  of  duty.  Most  of  us  have  reached  the  middle 
age;  our  spring  time  has  departed,  our  summer  time  has  almost 
left  us,  our  autumn  is  nigh,  and  ere  long  the  descending  snows  of 
winter  will  fall  upon  our  heads.  All  things  teach  the  dread  truth 
that  "life  is  fleeting,"  and  that  we  should  move  through  its  mazy 
paths  of  cares  and  pleasures,  with  hope  and  vision  fixed  on  the 
eternity  which  lies  beyond. 

In  this  case,  gentlemen,  we  have  each  a  solemn  duty  to  perform; 
let  us  discharge  it  with  a  high  sense  of  the  responsiblity  which 
rests  upon  us. 


THE  CONSPIRACY  CASE.  ]  17 

In  the  views  which  I  am  about  to  submit  to  you,  I  will  earn- 
estly endeavor  to  treat  this  cause  with  the  seriousness  its  import- 
ance demands,  and  with  the  candor  and  fairness  due  to  you  and  to 
the  court. 

While  I  feel  pleased  in  beholding  the  laurels  which  this  trial  ha* 
entwined  around  other  brows,  I  will  seek  to  gather  none  for  my 
own.  I  will  neither  wander  into  the  paths  of  fancy,  nor  address 
myself  to  those  who  sit  without  the  jury  box.  I  will  remember, 
however  dull  it  may  render  me,  that  my  duty  confines  me  to  this 
cause;  I  will  speak  only  of  it  and  address  myself  only  to  you.  I 
will  pass  over  the  case,  gentlemen,  as  nearly  as  possible  in  the  same 
order  which  has  been  pursued  by  the  distinguished  counsel  who 
last  addressed  you  for  the  defense.  I  shall  not  seek  or  hope  to 
leave  the  impress  of  oratorical  power  upon  your  imagination,  but 
trust,  ere  I  conclude,  to  convince  your  reason,  that  every  point 
urged  by  the  defense  is  fallacious  and  without  foundation  in  the 
facts  and  evidence  before  you. 

******** 

Gentlemen  of  the  jury,  while  in  some  respects  I  rejoice,  in  others 
I  regret  that  we  are  here  to-day.  I  rejoice  that,  although  during 
the  long  period  we  have  spent  together,  death  has  swept  away 
some  connected  with  this  trial — that  although  disease  has  at  times 
visited  you  or  your  families,  yet  that  God  in  his  providence  has, 
amid  your  prolonged  and  arduous  cares,  preserved  you  in  health 
and  vigor  to  discharge  the  high  duty  you  owe  to  them  and  your 
country.  I  am  glad  that  we  can  here  apply  our  minds  to  the  calm 
investigation  of  truth;  that  while  the  Sun  of  Heaven  lights  up  our 
beloved  city,  and  sheds  its  radiance  upon  the  fields  and  forests  and 
beautiful  river  within  our  vision,  we  can  sit  free  from  the  excite- 
ments of  life,  and,  with  an  eye  single  to  the  ends  of  law  and  justice, 
devote  our  best  energies  to  the  necessary,  though  laborious, 
task  of  a  fair  and  candid  examination  of  the  mass  of  evidence 
which  has  accumulated  in  this  cause.  I  regret,  on  your  account, 
that  the  responsibility  of  a  decision  has  fallen  upon  you,  and  for 
myself,  that  it  has  devolved  upon  me  to  say  ought  about  these 
unfortunate  prisoners;  yet  they  are  duties  that  may  not  be  passed 
by  or  put  aside.  That  you  will  discharge  your  duty  in  justice, 
though  tempered  with  mercy,  I  have  no  doubt.  I  would,  gentlemen, 
that  I  could  perform  mine  as  well.  You  must  expect  from  me, 
gentlemen,  no  eloquent  declamations,  for  I  will  frame  no  dazzling 
theories  upon  a  misi'epresentation  or  perversion  of  the  testimony, 
whether  accidental  or  designed.  I  will  not  weave  a  single  wreath 
of  fancy,  but  will  seek  to  bind  your  minds  and  my  own  to  the  plain 


H8  MODERN  JURY  TRIALS. 

and  unadorned  truths  that  are  apparent  in  this  case,  and  which 
alone  should  influence  you.  Although  I  have  to  follow  in  the  wake 
of  elaborately  prepared  and  eloquent  speeches,  I  will  not  seek  to 
emulate  them.  I  will  neither  quote  Latin,  or  decorate  my  periods 
by  selections  from  the  classic  pages  of  Addison;  nor  will  I  follow 
the  counsel  through  his  terrible  philippic  upon  the  leading  witness 
of  the  prosecution,  which  I  fear  lost  much  of  its  force  upon  minds 
familiar  with  the  strangely  similar  portraiture  of  Junius,  drawn  in 
the  "Vision  of  Judgment."  But  while  I  refrain  from  pursuing 
the  meteoric  fancies,  eloquent  philippics  and  sublime  apostrophes 
to  the  "sainted  dead,"  which  have  <?hed  a  false,  though  brilliant 
light  upon  the  dark  details  of  crime  revealed  to  you  day  by  day,  I 
will  go  through  the  case  fairly  and  discuss  it  fully.  I  will  nothing 
extenuate,  nor  aught  set  down  in  malice.  I  will  base  my  argu- 
ments upon  the  testimony,  not  as  I  would  have  it,  but  as  it  is.  I 
will  speak  not  to  the  world,  but  to  you,  who  can  correct  and  hold 
me  in  judgment,  if  I  fail  to  redeem  the  promises  of  fairness  and 
candor  which  I  make.  Heaven  can  witness  for  me  that  I  desire 
no  fame  at  the  expense  of  these  unfortunate  men.  I  will  use  no 
bitter  words;  I  will  affect  no  bitter  loathing;  I  will  assail  neither 
man,  woman  nor  child,  except  under  the  urgent  pressure  of  duty 
and  necessity.  I  wish  I  could  be  spared  the  painful  task  of  doing 
BO  at  all.  During  our  labors,  death  has  visited  some  of  those  who 
awaited  your  judgment — it  is  to  be  regretted.  By  none  was  it 
more  lamented  than  by  myself  and  the  gentlemen  associated  with 
me,  for  the  prosecution.  I  hoped  that  respect  for  the  inscrutable 
decrees  of  Providence  would  have  sealed  all  lips  upon  that  sad 
occurrence.  If  it  had  rested  with  the  prosecution,  the  dead,  how- 
ever guilty,  would  have  been  suffered  to  slumber  in  silence. 
.  Neither  you  nor  I  could  close  our  eyes  to  the  solemn  fact  that, 
"  those  who  were,  are  not."  Death  was  in  our  midst,  and  though 
silence  might  vail  its  horrors,  like  the  skeleton  at  the  Egyptian 
feast,  its  unseen  presence  was  felt  by  all.  But  for  no  purpose,  for 
no  end,  not  even  to  convict  the  guilty,  would  the  prosecution  have 
invaded  the  tomb  and  dragged  the  image  of  its  lifeless  tenant 
before  you,  either  for  unseemly  invective,  or  scarcely  less  seemly 
panegyric.  The  counsel  for  defendants  have  judged  otherwise;  it 
has  seemed  to  them  wise  and  proper  to  tear  aside  the  vail  that 
divides  the  living  from  the  dead,  and  to  invoke  the  "sainted  spirit" 
of  the  leader  of  these  defendants — a  phantom,  gentlemen,  that  I 
know  will  fail  in  the  design  of  frightening  you  from  your  propriety, 
but  the  invocation  of  which  entails  on  me,  in  certain  portions  of 
my  argument,  the  painful  duty  of  speaking  of  the  dead  and  their 


THE  CONSPIRACY  CASE.  119 

deeds  in  terms  which  I  would  fain  use  only  of  the  living.  It 
would  be  unseemly  to  seek  occasion  to  probe  the  deeds  and  motives 
of  those  who  are  no  longer  of  this  world,  but  it  would  be  criminal 
weakness  to  shrink  from  the  task  when  duty  demands  its  perform- 
ance. 

Much,  far  too  much,  has  been  said  to  you,  gentlemen,  about 
excitement.  However  pleasing  and  eloquent  all  this  may  have 
been,  like  too  many  of  the  arguments  urged  upon  you,  they  "  will 
not  bide  the  test."  Excitement  1  where  is  it,  gentlemen  ?  Surely 
not  here.  Whom  does  it  influence?  Surely  not  you.  Examine 
this  "  excitement,"  upon  which  such  impassioned  appeals  have  been 
made.  What  is  it?  Four  months  since,  thirty  or  forty  men, 
charged  with  atrocious  crimes,  were  arrested  and  brought  to  our 
city.  The  crime  with  which  they  stood  charged  was  one  that 
touched  us  nearly.  It  had  threatened  to  reduce  our  young  and 
beauteous  city  to  a  mass  of  black  and  smouldering  ashes,  and  o 
entomb  in  its  ruins  properties  that  were  the  reward  of  long  and 
ceaseless  toil.  Charged  with  this  fearful  crime,  they  came  among 
us  in  irons,  and  surrounded  by  every  moral  evidence  of  guilt.  It 
was  natural  that,  for  a  time,  the  public  pulse  should  beat  the 
quicker,  and  so  it  did,  but  there  was  no  attempt  at  violence;  there 
was  no  desire  that  the  accused  should  meet  aught  but  a  fair  and 
impartial  trial,  and  almost  before  they  were  lodged  in  our  jail,  the 
excitement  their  arrival  created  was  again  hushed,  and  the  pulse  of 
our  peaceful  and  law-abiding  city  again  beat  with  its  wonted  tran- 
quility;  and  as  you  well  know,  during  the  greater  portion  of  this 
trial,  but  for  the  crowd  of  witnesses,  the  little  room  in  which  we 
pursued  our  investigations  would  not  have  been  one-third  full. 
Excitement !  Among  whom  ?  Where  in  two  hours  a  jury  was 
tried  and  empanneled,  each  member  of  it  a  resident  of  this  city — 
this  hot-bed  of  excitement — and  each  member  of  it  equally  accept- 
able to  the  prosecution  and  the  prisoners.  Dangerous  excitement! 
It  is  a  foul,  and,  though  I  love  not  harsh  words,  a  false  stigma 
upon  our  city.  Where  could  these  prisoners  have  had  a  fairer  trial 
or  more  indulgence  extended  to  them?  Where  else  in  a  city  filled 
with  able  counsel,  unengaged  by  the  Government,  would  the  prose- 
cution have  delayed  the  trial,  at  great  sacrifice,  merely  that  coun- 
sel might  be  procured  for  prisoners  from  a  distance  of  hundreds  of 
miles  ?  Where  before  has  such  freedom  of  defense  been  suffered  ? 
Where  before  have  the  rules  of  law  been  waived  by  the  prosecu- 
tion, that  the  defense  might  introduce  all  that  could  be  found  to 
militate  against  the  character  of  an  important  witness  ?  In  what 
other  instance  have  counsel  for  defense,  without  check  orinterrujv 


120  MODERN  JURY  TRIALS. 

tion,  been  suffered,  in  an  address  to  the  jury,  to  comment  upon 
testimony  stricken  from  the  case,  to  travel  over  the  history  of  the 
country,  and  read  unsworn  letters  as  evidence?  In  the  whole 
range  of  criminal  reports  no  case  can  be  found  in  which  such 
liberal  indulgence  has  been  extended  in  aid  of  the  defense  of 
prisoners. 

Much  has  been  said  to  you  about  public  opinion;  but  what  have 
you  or  I  to  do  with  it  ?  It  cannot,  it  should  not,  influence  us. 
The  streets  may  be  filled  with  rumors  and  conjectures;  but  we  are 
not  in  the  streets,  and  such  things  float  past  us  unregarded.  We 
are  in  a  building,  for  the  present  at  least,  consecrated  to  the  admin- 
istration of  justice;  we  are  gathered  at  its  shrine — if  not  a  holy,  a 
solemn  one — and  excitement  and  public  opinion  should  both  be 
banished  from  the  elements  that  surround  it.  If  strong  public 
opinion  exists,  it  ib  not  the  creation  of  the  prosecution,  and  it  is 
unjust,  by  implication  or  otherwise,  to  charge  it  upon  us.  If  the 
city  press,  for  a  time,  published  news  in  connection  with  this  trial, 
that  it  deemed  important  to  the  public,  it  has  long  ceased  to  do  so. 
If  this  much-talked-of  public  opinion  exists,  who  made  it  ?  Npt 
the  prosecution;  its  lips  have  been  uniformly  closed  by  a  sense  of 
propriety.  And  I  would  ask  those  who  address  such  language  to 
you,  have  the  prosecuting  counsel  run  through  the  streets,  pledging 
their  honors  to  the  innocence  or  guilt  of  the  prisoners  ?  Have 
they  sought,  day  after  day,  to  raise  an  influence  that  might  be 
brought  to  bear  upon  your  deliberations  ?  Have  they  sown  dis- 
trust broadcast  in  the  community,  or  gathered  public  meetings  for 
the  purpose  of  denouncing  these  judicial  proceedings  ?  Have  they 
got  up  death-bed  scenes  to  affect  the  imagination  of  women  and 
children;  for  I  presume  they  were  scarcely  designed  to  influence 
men?  Have  they  published  sermons  of  doubtful  morality  and 
perverted  taste,  for  distribution,  with  reports  of  supervisors,  com- 
ments of  the  press,  and  fancy  scenes  by  youthful  and  ardent  coun- 
sel annexed  ?  Have  they  done  aught  but  their  duty,  or  done  that 
aught  but  fairly  ?  Have  they  passed  through  the  streets,  stating 
that  they  knew,  and  could  wager  that  certain  of  the  jury  they 
might  name,  would  never  agree  to  convict  ?  No,  gentlemen,  the 
prosecution  do  no  such  things,  and  "  laugh  to  scorn  "  those  who  do. 
They  know  you;  they  have  faith  in  your  intelligence  and  integrity, 
and  await  with  patience  and  respect  the  result  of  your  judgment. 
They  know  you,  and  despise  the  childish  weakness  which  seeks,  by 
such  shallow  courses,  to  "  turn  awry "  the  even  justice  of  your 
deliberations. 

We  are  here  to  seek  your  verdict  by  no  such  means;  we  are  here 


THE  CONSPIRACY  CASE.  121 

to  discuss  testimony,  and,  aided  by  lights  of  past  ages  and  the  wis- 
dom and  experience  of  our  respected  judge,  to  separate  truth  from 
falsehood.  You  have  heard  this  testimony;  you  have  listened  to 
it  with  unwearying  patience;  you  will  soon  retire,  "the  world  for- 
getting," though  not  by  it  forgot,  with  your  responsibilities 
gathered  upon  yourselves,  to  make  up  your  verdict  according  to 
that  law  which  has  been  well  styled  "the  perfection  of  human 
reason,"  and  which,  however  eloquently  it  may  be  assailed,  even 
by  its  own  disciples  who  serve  and  minister  at  its  shrine,  bears, 
stamped  upon  its  venerable  front,  the  sanction  of  ages,  of  sages 
and  of  worlds — willing,  if  you  can,  to  acquit  these  men;  but  ready, 
also,  if  your  judgment  and  the  law  direct  it,  to  find  them  guilty. 
************ 

Again  and  again,  you  are  told  that  death  has  visited  and  thinned 
the  ranks  of  these  unfortunate  men,  and  the  corse  and  its  shroud 
are  seized  upon  as  fit  pictures  to  disturb  your  visions,  in  the  hope, 
apparently,  of  making  you  shudder  as  you  gaze.  And  because 
Providence  has  deemed  it  fit  to  remove  two  of  these  defendants, 
shall  we  be  told,  in  deliberate  argument,  that  you  are  therefrom  to 
'nfer  the  innocence  of  those  who  are  left  ?  Is  such  to  be  the  basis 
of  a  solemn  verdict  ? 

Permit  me  to  ask  you,  gentlemen,  what  have  you  to  do  with 
death-bed  scenes,  false  in  fact,  morbid  in  taste,  and  wholly  irrele- 
vant to  this  issue  ?  You  will,  I  am  sure,  entirely  dismiss  from 
youi  imaginations  these  ghostly  fancies  which  your  good  sense  has 
doubtless  prevented  from  finding  lodgment  in  your  minds. 

But  the  picture  is  a  fancied  scene,  destitute  even  of  the  merit  of 
simple  truth.  The  dying  words,  which  are  now  so  sought  to  be 
perverted,  were  in  fact  of  far  different  import;  and  were  flung  off 
from  a  fevered  brain,  amid  the  fearful  delirium  of  deathly  collapse, 
and  let  me  say,  dressed  up  as  they  now  are,  they  would  meet  from 
the  deceased,  could  he  hear  them,  no  sign  of  recognition — naught 
but  the  smile  of  derision.  They  might  serve  to  adorn  the  page  of 
some  yellow  covered  novel — they  have  served  to  grace  two  elegant ' 
perorations — but  they  scarcely  seem  appropriate  in  the  argument  of 
a  trial  of  such  magnitude  and  importance.  I  regret  that  the  last 
delirious  moments  of  the  dead  should  be  subject  of  public  com- 
ment ;  but  as  counsel  on  the  other  side  have  thought  otherwise,  it 
is  my  duty  to  follow  them  with  the  truth,  and  it  will  be  duty  of 
the  court  to  tell  you  to  banish  them  from  your  minds,  if  perchance 
they  linger  there. 

Gentlemen,  you  have  been  gravely  told  that  "  you  stand  between 
the  living  and  the  dead;"  that  "  the  slightest  error  in  your  finding 


122  MODERN  JURY  TRIALS. 

will  prove  a  source  of  constant  remorse;"  that  "  the  thought  should 
make  you  tremble."  If  this  indeed  be  true,  you  may  well  tremble. 
Uncertainty  and  imperfection  are  stamped  upon  earth,  and  upon 
man,  its  choicest  production,  and  upon  his  proudest  efforts.  •  Feeble 
man  talking  of  certainty  1  His  loftiest  fabrics  crumble  beneath 
the  step  of  time  ;  or  are  crushed  or  scattered  before  an  hour's 
breath.  His  cultivated  intellect,  his  glowing  mind,  lie  shattered 
and  quenched  in  a  moment's  space.  No,  gentlemen,  no  such  fear 
ful  responsibility  rests  on  you;  no  such  unerring  certainty  is 
required  of  you;  and  he  who  seeks  to  grasp  or  attain  such  perfec- 
tion, will  only  realize 'how 

"Vaunting  ambition  doth  o'erleap  itaelf." 

Neither  reason,  law  nor  sense  requires  from  you  the  exercise  of 
superhuman  attributes.  You  are  bound  to  exercise  caution,  care, 
and  deliberation;  to  weigh  the  evidence  with  your  best  judgment; 
to  sift  it  with  your  keenest  penetration;  and,  having  done  this,  to 
state  honestly  the  convictions  of  your  mind — no  more  and  no  less. 
******** 

What  has  been  the  history  of  the  road  while  in  the  hands  of  the 
State?  For  years  it  dragged  its  slow  length  along;  an  encum- 
brance and  a  burthen.  The  State  needed  engines,  cars,  depots — 
every  material  to  prosecute  or  sustain  with  energy  or  profit,  this 
important  work;  but  its  credit  was  gone,  and  it  was  immersed  in 
debt.  Our  population  was  thinly  scattered  across  the  entire  breadth 
of  the  Peninsula.  Engines  dragged  slowly  and  heavily  through 
the  dense  forests.  Our  city  numbered  but  12,000  people;  our 
State  was  destitute  of  wealth;  our  farmers  destitute  of  markets; 
our  laborers  destitute  of  employment;  and  so  far  as  the  interests  of 
the  State  and  her  people  were  identified  with  the  railroad,  it  pre- 
sented a  joyless  present,  a  dark  and  frowning  future. 

In  a  fortunate  hour,  the  State  sold  the  road,  and  the  millions  of 
this  denounced  company  were  flung  broadcast  through  our  com- 
munity; they  took  up  the  old  track,  relaid  a  better  one,  extended 
the  road  to  the  extreme  line  of  the  State,  laid  down  at  enormous 
cost,  over  400  miles  of  fences  to  guard  the  property  of  all,  save 
those  who  wanted  a  beef  market  at  each  crossing;  multiplied  the 
accommodation  seven-fold,  quadrupled  the  speed,  increased  traffic 
and  commerce,  so  that  while,  in  1845,  the  State  passed  26,000  tons 
over  the  road;  in  1850  the  company  passed  134,000  tons;  created 
markets  for  our  products,  snatched  the  tide  of  passing  emigration 
from  the  hands  of  a  steamboat  monopoly,  hostile  to  Michigan,  and 
threw  it  into  the  heart  of  our  State,  until  now,  where  heaven'i 


THE  CONSPIRACY  CASE.  123 

light  was  once  shut  out  by  dense  forests,  it  shines  over  fertile 
fields,  and  rich,  luxuriant  harvests,  and  the  rivers  of  our  State, 
which  once  ran  with  wasteful  speed  to  the  bosom  of  the  lakes, 
turns  the  machinery  which  renders  our  rich  products  available. 
With  them,  Capital  made  its  home  amongst  us;  our  credit  was 
restored;  hope  and  energy  sprung  from  their  lethargic  sleep;  labor 
clapped  her  glad  hands  and  shouted  for  joy;  and  Michigan  bent  for 
the  moment,  like  a  sapling  by  the  fierceness  of  a  passing  tempest, 
relieved  from  the  debts  and  burthens,  rose  erect,  and  in  her  youth- 
ful strength,  stood  proudly  up  among  her  sister  States. 

Who  shall  stop  this  glorious  work,  which  is  spreading  blessings 
and  prosperity  around  us.  Who  shall  dare  to  say,  "  thus  far  shalt 
thou  go  and  no  farther  ?  "  Who  shall  dictate  to  it  after  doing  so 
much  ?  Must  it  now  pause  and  rest  in  inglorious  ease  ?  No,  gen- 
tlemen, it  shall  not  be  stayed ;  it  shall  speed  onward  in  triumph ,  it 
shall  add  link  after  link  to  the  great  chain  that  binds  mankind 
together;  it  shall  speed  onward,  still  onward,  through  the  gorges  of 
the  mountain,  over  the  depths  of  the  valley,  till  the  iron  horse, 
whose  bowels  are  fire,  "  out  of  whose  nostrils  goeth  forth  smoke," 
and  "whose  breath  kindleth  coals,"  shall  be  heard  thundering 
through  the  echoing  solitudes  of  the  Rocky  Mountains,  startling 
the  lone  Indian  from  his  wild  retreat,  and  ere  long  reaching  the 
golden  shores  of  the  far-off  Pacific,  there  to  be  welcomed  by  the 
glad  shouts  of  American  freemen  at  the  glorious  event  which  has 
conquered  time  and  distance,  and  bound  them  by  nearer  chords  to 
older  homes  and  sister  States. 

A  detestable  monopoly!  These  railroads,  built  by  united  ener- 
gies and  capital,  are  the  great  instruments  in  the  hand  of  God  to 
hasten  onward  the  glorious  mission  of  religion  and  civilization. 
Already  is  our  Central  Road  stretching  forth  its  hands,  and  giving 
assurance  that  soon  shall  its  iron  track  reach  across  the  neighbor- 
ing Provinces  from  Detroit  to  Niagara;  and  that  ere  long  the 
scream  of  the  locomotive  shall  be  heard  over  the  sound  of  tbe  cat- 
aract, which  shall  thunder  forth  in  deafening  peals,  that  glorious 
event.  Our  brethren  on  the  shores  of  the  Atlantic,  with  whom 
we  are  bound  by  every  interest,  association  and  affection,  will  hail 
the  shortened  tie  with  ardent  welcome. 

Beneath  the  beneficial  influence  of  companies  like  this,  space  is 
annihilated,  weeks  are  reduced  to  the  compass  of  days,  and  in  spite 
of  the  wicked  purposes  01  bad  men,  this  and  kindred  companies 
shall  continue  to  spread  and  contribute  to  the  greatness  and  pros- 
perity of  our  country,  until  the  earth  vibrates  with  the  pulses  of 
her  glory.  **«»**• 


124  MODERN  JURY  TRIALS. 

What  I  are  we,  in  this  law-ahiding  and  loyal  State,  to  have  it 
thundered  in  the  ears  of  jurors,  in  the  sanctity  of  a  court  house, 
and  in  the  course  of  judicial  proceedings,  from  the  lips  of  any  man, 
that  if  a  verdict  is  not  satisfactory  to  the  people,  another  "inquisi- 
tion will  be  holden,  and  the  victims  of  the  law  be  dragged  from  the 
bloody  fingers  of  power  ?  "  Do  I  overstate  it  ?  No,  I  know  you 
recollect  it.  I  saw  and  felt,  and  sympathized  with  you,  in  the 
shudder  which  marked  your  feelings  as  that  and  kindred  sentences 
fell  upon  your  astonished  ears.  I  forgot  I  was  here,  and  was  car- 
ried for  a  moment  to  some  heated  tribune  of  Paris,  where  some 
spirit  of  fierceness  was  maddening  the  populace  and  stirring  up 
France  to  again 

"  Get  drunk  with  blood  to  vomit  crime." 

Ah!  gentlemen,  there  is  a  worse  evil  abroad  through  this  land, 
than  the  overshadowing  power  of  corporations.  There  are  isms  of 
dreadful  and  fearful  import  around  us.  They  "  menace  our  public 
institutions  and  private  rights."  There  is  a  spirit  of  disloyalty  to 
law  and  country;  a  tendency  to  forsake  the  old  land  marks;  to 
treat  the  lessons  of  sages  which  come  down  from  our  fathers,  as 
antiquated  and  worn  out;  to  speak  lightly  of  our  hallowed  Union; 
to  abandon  those  pure,  steadfast  and  perpetual  principles  which 
have  sanctified  our  past,  and  which  can  alone  save  our  future;  and 
to  rear  and  plant  in  their  stead  a  "  higher  law,"  which  each  one  for 
himself  may  adjudge  and  administer. 

Hence  come  those  frightful  dangers  which  disturb  our  courts; 
that  voice  of  evil  omen  which  would  fain  chaunt  the  hymn  of  ruin 
over  the  broken  fragments  of  our  capitol;  which  would  raise  the 
arm  of  private  judgment  against  the  enactment  of  the  law-makers; 
and  rouse  an  excited  populace  to  sit  in  judgment  on  the  decisions 
of  courts  and  the  verdicts  of  juries. 

Gentlemen,  it  is  an  evil  day,  when  the  men  of  our  high  places 
are  found  scattering  such  seed  in  congenial  soil.  Where,  if 
such  is  to  be  the  course  of  things,  are  we  to  stop  ?  There  would 
be  an  end  of  law,  and  confusion  and  ruin  would  stalk  with  fearful 
strides  over  our  land.  We  enforce  not  the  law  here  by  the  bayo- 
net. It  is  the  law  of  the  people,  administered  by  forms  pre- 
scribed; and  the  beautiful  sight  is  exhibited  of  the  people  of  a 
whole  empire  bowing  in  silent  respect  and  cheerful  obedience  to 
the  adjudications  of  their  own  courts  and  the  verdicts  of  their  own 
juries.  And  well  may  we  do  so.  For  what  would  we  be  without 
that  law  and  cheerful  obedience  to  it  ?  What  and  where  would  we 
be  if  a  community,  or  any  portion  of  it,  could  or  dare  rise  up,  in 


THE  CONSPIRACY  CASE.  125 

violence  or  lawlessness,  and  crush  or  disturb  the  solemn  awards  of 
legal  tribunals  ?  What  and  how  shall  we  characterize  the  spirit 
which  would  invite  us  to  such  a  dread  feast  ? 

Gentlemen,  all  you  possess  on  earth  is  the  reward  of  labor  pro- 
tected by  law.  It  is  law  alone  which  keeps  all  things  in  order, 
guards  the  sleep  of  infancy,  the  energy  of  manhood,  and  the  weak- 
ness of  age.  It  hovers  over  us  by  day;  it  keeps  watch  and  ward 
over  the  slumbers  of  the  night;  it  goes  with  us  over  the  land,  and 
guides  and  guards  us  through  the  trackless  paths  of  the  mighty 
waters.  The  high  and  the  low,  each  are  within  its  view,  and 
beneath  its  ample  folds.  It  protects  beauty  and  virtue,  punishes 
crime  and  wickedness,  and  vindicates  right.  Honor  and  life,  and 
liberty,  and  property,  the  wide  world  over,  are  its  high  objects. 
Stern,  yet  kind;  pure,  yet  pitying;  steadfast,  immutable  and  just; 
it  is  the  attribute  of  God  on  earth.  It  proceeds  from  His  bosom, 
and  encircles  the  world  with  its  care  and  power  and  blessings. 
All  honor  and  praise  to  those  who  administer  it  in  purity,  and  who 
reverence  its  high  behests. 

When  our  own  respected,  eloquent  and  classic  citizen  senator,  was 
desired  to  choose  a  motto  and  design  for  the  coat  of  arms  of  that 
State,  with  which  he  is  so  identified,  and  by  it  so  appreciated,  most 
happy  was  he  in  that  choice.  We  find  it  stamped,  and  reading, 
when  rendered,  thus:  "If  you  seek  a  beautiful  peninsula,  look 
around  you."  And  we  see,  as  part  of  the  design,  the  sun  of  civili- 
zation rising  from  the  waters,  and  commerce  and  agriculture  quick- 
ening into  life  beneath  its  genial  rays.  And  the  lone  Indian  is 
there  too,  standing  in  sadness,  seeing  the  elements  advancing  and 
gathering,  which  tell  him  the  doom  of  his  race,  and  before  which 
he  must  again  retreat  to  roam  the  western  wilds. 

And  a  beautiful  peninsula  it  is!  Its  shores  bathed  and  almost 
circled  by  the  majestic  lakes  which  now  are  convulsed  with  storm, 
and  anon  flash  back  the  serene  light  of  heaven,  as  if  from  a  million 
of  mirrors.  Its  prairies  blooming  with  beauty,  and  uttering  sweet 
whisperings  to  the  light  wind  as  it  breathes  among  its  flowers;  its 
fields  yellow  with  luxuriant  harvests;  its  youth  cultivated;  its  peo- 
ple moral,  contented  and  happy;  and  all  reposing  beneath  the  reign 
of  law  and  order.  But  change  the  scene!  Let  law  be  disregarded, 
and  her  ministers  brought  to  contempt;  let  confusion  and  disobedi- 
ence characterize  her  people,  and  the  clouds  of  darkness  and  dis- 
grace will  soon  gather  over  our  land.  Frantic  passion  will  produce 
ruthless  violence;  bad  men  will  revel  and  rejoice;  the  good  will 
sigh  and  depart.  Better,  than  that  this  should  come  to  pass,  would 
it  be  that  the  forest  and  primeval  silence  should  return  again.  But 


128  MODERN  JURY  TRIAL8. 

it  is  useless  to  anticipate  such  evil  things.  Such  invocations  to  oar 
people,  fall  on  unwelcoming  ears.  They  may  suit  some  foreign 
district,  some  land  where  anti-rent  and  anti-law  make  part  of  her 
history;  but  cannot  and  will  not  corrupt  the  law-loving  and  law- 
respecting  people  of  Michigan.  He  who  expects  to  read,  on  the 
columns  of  her  greatness,  words  of  disloyalty  to  the  Union  or  dis- 
respect to  law,  may  seek  for  them  in  vain,  until  he  himself  sinks 
into  the  abyss  of  time. 

I  regret,  gentlemen,  to  have  thus  to  leave  the  strict  merits  of  the 
case,  to  follow  and  comment  on  the  extraneous,  and,  to  my  judg- 
ment, most  dangerous,  remarks  of  counsel,  and  will  now  return  to 
what  is  more  in  point. 

******** 

Gentlemen,  I  feel  the  solemnity  and  importance  of  the  place  and 
the  hour.  The  long  months  which  we  have  been  in  this  Court 
House,  are  dwindled  down  to  a  span.  A  narrow  space  intervenes 
between  us  and  the  long  looked  for  end.  I  need  not  say  how 
important  it  is  for  these  prisoners — solitude  or  society,  liberty  or 
bondage  tremble  within  the  fleeting  moments,  and  it  makes  me  sad 
to  feel  and  believe,  as  I  do,  that  the  dark  shadows  of  the  prison 
house  are  already  gathering  around  them.  But,  gentlemen,  there 
is  an  importance  beyond  the  fate  of  these  prisoners  and  the  limits 
of  this  court  room.  This  cause  has  spread  through  the  confines  of 
our  State  and  beyond  its  limits,  and  a  world  is  looking  on  to  see  if 
there  is  here  strength  and  virtue  sufficient  to  assert  the  integrity  of 
the  law. 

The  dignity,  the  honor  and  the  character  of  Michigan  are  in  your 
keeping.  I  feel  proud  and  secure  in  knowing  them  there.  I  feel 
assured  that,  when  the  future  historian  makes  out  the  record  of  our 
past,  and  the  pencil  of  truth  writes  down  the  dark  details  of  law- 
less violence  and  banded  crime,  which  stain  our  annals  and  blacken 
our  fame,  there  shall  be  written  beneath  it  in  living  light,  these 
words  which  will  illuminate  the  darkness  and  remove  the  stigma: 
**  A  firm  and  able  judge,  an  intelligent  and  honest  jury,  unawed 
by  fear  and  prejudice,  and  unawed  by  threats,  vindicated  the  vio- 
lated law." 

We  are  called  upon  by  every  high  consideration  which  can  induce 
action,  to  do  our  duty  in  this  case.  Gratitude  for  the  lovely  herit- 
age God  has  given  us;  patriotism;  love  for  the  beautiful  peninsula, 
in  which  is  fixed  our  destiny  and  centered  our  all  of  earthly  good 
and  hope;  the  desire  we  have  for  her  future  prosperity  and  illus- 
trious career,  all  unite  in  one  voice,  and  ask  that  you  be  firm,  free 
and  steadfast  on  this  occasion.  For,  if  these  dangerous  doctrines 


THE  CONSPIRACY  CASE.  127 

which  produce  the  outrages  we  are  considering,  are  to  be  spread 
from  the  hamlets  of  Leoni  throughout  the  breadth  of  the  land,  and 
even  to  the  jury  box  of  our  courts;  if  men,  animated  by  deep  hate 
against  a  corporation,  feel  and  think  that  they  are  justified  in 
redressing  their  own  real  or  fancied  wrongs  in  their  own  way;  if 
courts  are  to  be  scouted  at,  law  trampled  on,  order  rushed  into 
wild  confusion,  and  crime  sympathized  with  and  left  to  stalk 
unpunished,  then,  indeed,  have  evil  days  come  upon  us.  Capital, 
virtue,  peace  and  property  will  be  trodden  over  and  crushed  by 
mob  violence,  and  all  the  dire  evils  which  will  follow  in  its  train. 

The  first  jury  which  renders  a  verdict,  tainted  by  the  unhallowed 
spirit  of  fear  or  public  opinion,  or  prejudiced  by  loud  clamors 
against  monopolies  and  tyrannical  corporations,  will  have  stricken 
a  death  blow  at  their  country's  honor  and  welfare.  The  first  jury- 
man who  renders  his  verdict,  in  the  midst  of  turmoil,  excitement 
and  prejudice,  unmoved  by  all  such  elements,  with  his  conscience 
impressed  by  his  oath,  with  his  mind  calmly,  but  deeply,  imbued 
with  the  truth  and  regulated  by  the  law,  presents  a  moral  spectacle 
to  be  admired,  honored,  and  forever  remembered — his  action  adds 
to  the  security  of  the  commonwealth  and  gives  new  guaranty  of 
its  perpetuation. 

Gentlemen,  I  do  not  intimate  that  there  is  any  great  volume  of 
prejudice  or  passion  arrayed  against  the  Michigan  Central  Railroad 
Company.  I  believe  that  the  mass  of  our  citizens  regard  it  as  a 
public  benefit,  a  mighty  source  of  unnumbered  blessings  to  Michi- 
gan, and  its  superintendents  and  managers  as  liberal,  just  and  hon- 
est. Be  this  as  it  may,  I  do  know  that  Michigan  is  loyal  to  the 
Union  and  the  laws.  May  she  remain  so  forever!  I  would  fain 
carve  the  sentiment  on  the  columns  of  her  Capitol;  I  would  stamp 
it  on  her  broad  banner;  I  would  wave  it  aloft,  that  her  law-loving 
and  law-abiding  people  might  gaze  on  it  with  pride  and  pleasure, 
knowing  and  feeling  that  they,  and  all  they  have  or  cherish,  will 
ever  find  security,  peace  and  happiness,  beneath  its  ample  folds. 

So  may  it  be,  and  if  so,  we  will  soon  find  the  State  of  our  pride 
leaping  on  to  greatness  like  a  young  giant,  glowing  all  over  with 
honor,  vigor  and  prosperity,  till  she  becomes  lustrous  as  the  starlit 
eky. 

But,  gentlemen,  fraught  with  importance,  as  I  deem  this  case  to 
be  to  the  character  and  welfare  of  Michigan,  still  we  wish  no  ver- 
dict at  the  unjust  condemnation  of  a  single  citizen.  Whatevei 
your  verdict  may  be,  this  prosecution  and  a  good  community  will, 
and  must,  be  satisfied  with  it.  All  we  required  was  a  fair,  impar- 
tial trial;  that  has  been  obtained,  and  whatever  be  the  result,  we 


128  MODERN  JURY  TRIALS. 


never  murmur  against  it.  We  know  the  care  and  anxiety  it 
has  cost  you,  and  the  inconvenience  and  loss  it  has  entailed  upon 
you.  We  know  the  consciousness  you  have  of  your  weighty 
responsibility,  and  that  even  now  you  would  gladly  pass  the  cup 
from  you.  But,  gentlemen,  the  duty  of  a  good  citizen,  if  well  dis- 
charged, however  painful  in  the  present,  becomes  through  all  after- 
time  an  abiding  source  of  pure  pleasure. 

May  I,  for  a  moment,  change  this  scene,  take  you  to  the  Capitol 
of  your  Union,  and  turn  back  the  tide  of  time  a  few  short  months. 
See  there  before  you  the  scene  of  a  patriot  soldier's  death  bed! 
His  life  has  been  spent  in  the  service  of  his  country.  His  honor, 
like  his  own  good  sword,  is  without  a  stain.  He  once  was  exposed 
to  the  perils  of  this  northwestern  frontier.  He  braved  danger  and 
death  amid  the  everglades  of  Florida.  On  the  terrible  fields  of 
Mexico  he  bore  aloft  the  glorious  flag  of  our  Union,  graced  it  with 
new  triumph,  and  "planted  fresh  stars  of  glory  there!"  The  voice 
of  a  grateful  nation  called  him  to  the  high  place  of  our  country; 
but  here  for  him  is  the  end  of  life.  He  has  fought  his  last  battle; 
he  yields  to  the  victor,  Death;  his  eye,  once  gleaming  through  the 
smoke  of  battles,  is  dim;  his  voice,  once  heard  like  the  bugle  over 
the  clash  and  shouts  of  a  deadly  strife,  can  only  whisper;  and  his 
brave  heart,  which  never  beat  with  fear,  is  flickering  in  its  last 
pulsations.  What  do  we  hear  now?  What  memories  of  brave 
deeds  now  come  back  to  light  up  the  gloom  of  the  dark  hour? 
What  rays  of  earthly,  glory  now  shed  their  radiance  to  cheer  the 
dying  hero  through  his  last  struggle?  Alas!  illustrious  though  his 
deeds,  bright  though  his  fame,  all,  all  seem  quite  forgotten;  but 
there  does  come  whispering  to  his  sinking  spirit  a  kindly  thought 
and  a  sweet  solace,  and  you  hear  it  falling  tremulous  from  his  lips: 
"I  have  endeavored  to  do  my  duty." 

Gentlemen,  may  we  endeavor  to  do  our  duty  in  this  case,  and 
through  life,  and  be  consoled  by  the  reflection  thereof  in  death. 

And  now,  though  through  with  all  I  have  to  say,  though  happy 
to  feel  that  I  need  no  longer  detain  you,  I  yet  linger  ere  taking  my 
seat. 

We  have  come  together  so  often;  we  have  associated  in  this 
cause  so  long;  we  have  participated  in  our  several  capacities  for  so 
many  months  in  all  the  excitements  and  'incidents  of  this  trial;  the 
kindly  greetings  of  recurring  morns,  the  familiar  faces,  the  pleas- 
ant intercourse,  all  have  flung  remembrances  over  the  past  which 
now,  at  the  moment  of  parting,  cluster  so  fresh  and  warm  around 
us,  that  I  hesitate  to  end  them. 

I  would  fain  say  a  word  of  kindness  to  all  engaged  in  this  cause, 


THE  CONSPIRACY  CASE.  129 

but  it  may  not  be  appropriate  to  speak  individually  of  each.  I 
feel  I  may,  however,  with  propriety  allude  to  the  prosecuting 
attorney  of  this  county,  who,  before  you  and  the  people  he  repre- 
sents, has  discharged  his  trying  duties  with  an  impartiality,  ability 
and  fidelity  which  has  gained  for  him  an  enviable  name. 

And  now  for  yourselves  allow  me  to  say,  I  cannot  by  words 
show  my  high  appreciation  of  you  and  your  services.  I  can  only 
thank  you  warmly  and  truly.  May  long  life  and  every  prosperity 
repay  you  for  your  cares  and  sacrifices  in  this  cause,  and  when  the 
summons  comes  for  you  to  appear  before  the  High  Tribunal  of 
another  world,  may  each  one  of  you  with  a  conscious  sense  of  duty 
well  discharged, 


1  Sustained 'and  soothed 


By  an  unfaltering  trust,  approach  thy  grare, 
Llke'one  who  wraps  the  drapery  of  his  couch 
About  him,  and  lies  down  to  pleasant  dreams." 

[Hon.  JACOB  M.  HOWABD  (since  deceased),  made  a  powerful  and 
eloquent  opening  argument  to  the  jury,  but  failed  to  preserve  the 
notes,  and  it  is  lost  so  far  as  any  record  is  known.  Of  his  won- 
derful power  with  a  jury,  too  much  could  not  be  said.  His 
methods  as  an  orator  are  aptly  described  by  the  words  of  Attorney- 
General  May  and  Chief  Justice  Campbell,  at  his  death  in  April, 
1871.  Mr.  May  said: 

"  The  name  of  Jacob  M.  Howard  is  a  household  word  in  Michi- 
gan. There  is  no  man  here  so  poor  or  so  ignorant  who  is  not 
familiar  with  that  name.  During  all  its  years  of  existence  he  has 
been  one  of  its  strong  pillars  of  support,  and  has  left  the  impres- 
sion of  his  great  mind  upon  its  wonderful  growth  and  prosperity. 
He  grew  up  into  a  perfect  manhood  within  its  borders,  and  has 
been  closely  identified  with  every  interest  tending  toward  its 
development. 

"  He  was  a  man  of  mark.  The  stranger  stopped  and  looked  at 
him,  and  instinctively  received  the  impression  that  he  was  in  the 
presence  of  a  man  of  great  physical  and  mental  power.  He  was  a 
true  man — true  to  his  clients,  true  to  his  convictions,  true  to  all  the 
great  and  varied  interests  committed  to  his  care  by  an  intelligent 
and  confiding  constituency.  He  was  true  to  his  country  when 
armed  treason  sought  its  life;  and  he  loved  his  country  and  its 
institutions  with  a  zeal  that  amounted  to  a  passion.  He  united  the 
simplicity  of  a  child  with  the  strength  of  a  lion.  The  constitution 
of  his  mind  was  such  that  he  loved  truth,  right  and  justice  for  their 
own  sakes,  and  loathed  and  spurned  deception  and  fraud  with  a 
strength  rarely  equalled. 

"  Amid  all  the  rancor  and  hate  engendered  by  partizan  strife 
during  the  past  few  years,  no  man  could  honestly  charge  Mr.  How- 
ard with  dishonesty.  However  much  his  great  powers  enriched 
others,  he  died  poor.  With  advantages  for  gain  possessed  by  few, 
commencing  the  practice  of  law  nearly  forty  years  ago,  and 
9 


130  MODERN  JURY  TRIALS. 

acknowledged  to  be  a  leader  in  the  profession,  he  died  poor.  Proud 
words  these  to  adorn  the  monument  of  a  statesman  !  No  man 
could  desire  a  more  fitting  epitaph.  They  speak  volumes  for  his 
honesty,  and  indicate  that  whoever  else  worshipped  mammon  and 
enriched  themselves  at  the  expense  of  the  government,  'Jacob  M. 
Howard  always  kept  strictly  within  the  golden  rule.  Indeed,  like 
Webster,  whom  he  strongly  resembled,  he  cared  quite  too  little  for 
gold  and  silver  and  the  accumulation  of  wealth.  He  worshipped 
at  no  such  shrine.  With  a  strong  mind  and  sound  body  early 
trained  to  severe  discipline,  and  enriched  by  ancient  and  modern 
learning,  united  with  a  fine  presence  and  a  wonderful  command  of 
pure  English,  few  men  were  his  equals  at  the  bar,  in  the  forum,  or 
on  the  hustings.  His  death  is  a  great  public  loss,  and  will  be 
mourned  by  thousands  throughout  the  length  and  breadth  of  this 
continent,  and  by  none  more  sincerely  than  by  the  recently  enfran- 
chised race  whose  earnest  and  eloquent  friend  he  lived  and  died." 

Judge  Campbell  said: 

"Mr.  Howard's  style  of  legal  eloquence  was  very  remarkable. 
He  never  appeared  in  a  court  of  justice  except  with  great  gravity 
of  demeanor;  not  one  that  was  put  on  for  the  occasion,  but  one 
that  was  natural  to  a  man  who  felt  impressed  with  the  feeling  that 
he  was  a  minister  of  justice.  His  diction  was  of  that  lofty  kind 
that,  applied  to  lesser  subjects,  would  have  been  inappropriate,  and 
applied  by  lesser  men,  would  have  had  very  little  effect.  But 
when  behind  his  ponderous  language  was  his  ponderous  intellect, 
and  when  every  word  that  he  said  had  its  meaning,  and  every  idea 
came  out  with  all  the  force  that  language  could  give,  then  those 
rounded  periods  had  something  of  magic  in  them,  and  there  was 
as  much  gained,  perhaps,  by  that  manner  of  his  as  could  be  by  any 
aid  of  rhetoric  that  could  ever  have  been  devised.  *  *  *  Mr. 
Howard  was,  I  think,  the  best  specimen  of  the  natural  production 
of  American  institutions  in  their  best  form  that  we  had  amongst 
us.  He  was  peculiarly  American.  While  he  possessed  plainness, 
and  while  he  despised  all  those  things  that  are  despicable,  he  had 
a  most  hearty  admiration  for  everything  that  could  really  illustrate 
and  embellish  life.  As  a  scholar,  I  know  no  one  whose  reading 
was  more  extensive  and  select;  there  was  no  branch  that  he 
despised  or  neglected.  *  *  *  He  was  a  man  who  represented 
better  than  any  man  I  have  ever  known  in  this  community,  and 
somewhat  as  the  lamented  Mr.  Lincoln  did,  the  great  popular  com- 
mon sense  of  the  people.  He  was  remarkable  for  reflecting  that 
you  could  almost  always  be  sure  that,  as  an  ordinary  matter  struck 
Mr.  Howard,  so  it  struck  the  average  sense  of  the  community;  at 
least  when  passion  was  over,  and  when  the  time  for  sober  reflection 
had  come;  and  in  this  way  finding  in  his  own  heart  a  reflection  of 
those  emotions  and  feelings  that  actuated  the  great  mass  of  man- 
kind, we  can  find  that  peculiar  trait  of  his  character — one  very 
great  for  his  success.  When  he  spoke  to  a  jury,  he  knew  how 
everything  would  strike  that  jury;  when  he  addressed  the  court, 
if  that  court  possessed  ordinary  qualifications  and  common  sense, 
he  knew  how  those  ideas  would  strike  the  court,  and  that  they 


TRIAL  OF  DANIEL  E.  SICKLES.  131 

would  understand  them.  When  he  addressed  the  Senate  or  the 
larger  audiences  of  the  people  of  the  United  States,  in  like  manner 
he  knew  that  what  he  said  would  go  right  home  to  their  hearts, 
and  that  they,  at  all  events,  would  appreciate  and  understand  him, 
whether  they  did  or  did  not  agree  with  him  in  that  which  he  was 
seeking  to  bring  about.  And  I  think  myself  that  when  Time  has 
made  his  memory  a  thing  of  the  past — when  his  fame  has  become 
the  property  of  future  generations,  although  he  may  be  remem- 
bered as  a  great  man;  although  he  may  be  remembered  for  his 
learning,  for  his  eloquence,  and  for  the  qualities  that  have  struck 
most  admiration  into  the  great  mass  of  mankind,  he  will  be  still 
further  venerated  and  remembered  as  a  representative  American, 
who  valued  above  all  other  things  the  great  and  essential  principles 
of  mankind." 


THE  TKIAL  OF  DANIEL  E.  SICKLES. 
INDICTED  FOE  THE  MURDEB  OF  KEY. 

HtUd  at  Washington,  February,  1859. 

This  is  one  of  the  leading  insanity  cases  in  America.  It  com- 
prises some  of  the  most  exciting  scenes,  distinguished  parties,  coun- 
sel and  witnesses,  in  the  whole  line  of  insanity  defenses. 

Major  General  Sickles,  now  a  retired  army  officer,  politician  and 
celebrated  lawyer  of  New  York,  was  congressman,  on  duty  as  such 
at  the  time  of  the  homicide.  He  had  filled  many  places  of  profit 
and  trust,  was  married  to  a  very  beautiful  woman,  and  lived  at  the 
Capital.  He  has  been  minister  to  Spain,  and  was  a  society  gentle- 
man of  high  rank  and  standing  in  Washington. 

District  Attorney  Key,  whose  father  was  author  of  "  The  Star 
Spangled  Banner,"  was  a  person  of  accomplished  manners,  a  friend 
of  General  Sickles  and  wife,  and  intimate  with  the  family.  Gen- 
eral Sickles  had  aided  his  professional  advancement  in  various 
ways. 

The  dreadful  secret  came  by  the  confession  of  Mrs.  Sickles,  after 
being  detected  in  giving  signals  to  Key  on  the  fatal  Sunday,  when 
General  Sickles  shot  the  seducer  dead  in  broad  daylight,  and  gave 
himself  up  to  imprisonment. 

The  defense  was  emotional  insanity.  The  counsel  employed  in 
the  case  were  Messrs.  Jas  T.  Brady,  Graham,  Stanton,  Phelps,  and 


132  MODERN  JURY  TRIALS. 

others — as  grand  an  array  of  legal  talent  as  ever  assembled  on  the 
continent.  The  efforts  of  these  leaders  of  the  bar  would  make  a 
readable  volume;  but  the  object  is  to  select  such  portions  of  the 
facts  and  arguments  as  will  describe  the  trial.  Extracts  of  Secretary 
Stanton's  address  are  aptly  quoted  in  the  trial  of  McFarland,  in 
this  volume. 

Few  cases  ever  attracted  more  attention,  and  seldom  has  a  case 
been  more  ably  conducted.  Such  passages  as,  "  You  all  know  too  well 
the  value  men  put  upon  the  marriage  bed!"  "Trouble  is  a  mys- 
terious visitor,"  "Prosperity  is  the  parent  of  friends;  bad  fortune 
the  fire  by  which  they  are  tried,"  occur  often.  Mr.  Graham's  open- 
ing periods  are  selections  of  wisdom,  culled  from  holy  writ, 
ancient  classics,  and  the  inspired  utterances  of  great  men.  To 
read  them  is  to  know  what  such  men  say  of  home  and  honor. 

In  this  trial  no  summing  up  was  made.  The  case  was  submit- 
ted on  the  charge  of  the  court,  with  brief  arguments  on  requests  to 
charge.  It  is  remarkable  that  men  so  learned  and  eminent  as 
Messrs.  Beach,  Brady,  Stanton  and  Graham  should  thus  submit  an 
important  case.  Such  a  hazard  is  not  often  attempted;  but  the 
result  proved  their  wisdom.  "Remorseless  Revenge"  was  the 
theory  of  the  prosecution.  The  remarks  of  Mr.  Brady  and  Mr. 
Stanton  were  carefully  kept  by  Mr.  Graham,  and  used  in  his  speech 
in  the  McFarland  case,  where  they  are  reported. 

[The  writer  remembers  an  instance  of  Secretary  Stanton's  art  as 
an  advocate  that  may  well  be  mentioned  in  this  connection.  It  was 
a  trial  of  a  young  man  charged  with  stabbing  his  rival  in  the 
heart,  near  Cleveland,  some  years  before  the  war.  Mr.  Stanton, 
then  in  the  prime  of  his  legal  practice,  was  pitted  against  the  elo- 
quent advocate,  John  A.  Bingham,  afterwards  a  fellow  statesman. 
Mr.  Stanton  kept  his  seat,  in  busy  but  quiet  preparation,  for  a  final 
plea.  The  prosecuting  attorney  was  young  and  weak.  Mr.  Bing- 
ham was  expected,  and  was  prepared,  to  close.  Indignation  ran  high 
against  the  prisoner.  The  cool,  quiet  manners  and  mysterious  self- 
possession  of  Stanton  never  deserted  him.  He  read  between  the 
lines,  that  his  closing  would  rouse  Counselor  Bingham,  who  would 
stir  the  jury  into  such  a  fury  of  excitement,  that  hanging  would  be 
called  for,  and  no  mercy.  As  the  district  attorney  closed,  saying, 
his  "able  and  distinguished  associate  would  conclude  after  Mr. 
Stanton,"  and,  warning  the  jury  against  Mr.  Stanton's  power,  he  took 
his  seat.  The  silence  grew  painful  "  Proceed,  Mr.  Stanton," 
said  the  court.  "  I  have  no  remarks  to  add,  your  honor,"  was  the 
reply.  John  A.  Bingham  was  white  with  rage.  He  tore  his  notes  in 


TRIAL  OF  DANIEL  E.  SICKLES.  133 

•hreds,  muttering,  "Stanton's  trick  !  I  might  have  known  it."  It 
was  a  clear  case  of  "  dropping "  on  counsel,  and  a  most  effective 
speech.  The  jury  and  spectators  were  dumb  with  disappointment. 
The  defendant  was  found  guilty  of  manslaughter,  and  sentenced 
for  a  moderate  period — his  life  saved  by  the  skill  of  his  counsel. 
Secretary  Stanton  earned  and  accepted  his  $1,000  retainer  with 
composure.  He  had  not  uttered  a  word  for  his  client,  and  yet 
made  an  eloquent  argument  by  his  silence.  Silence,  even  in  a  law  - 
suit,  is  sometimes  golden.] 

HON.  JOHN  GRAHAM. 

For  more  than  a  score  of  years  Mr.  Graham  has  been  a  lead- 
ing advocate  in  New  York,  and  met  with  deserved  success  in  many 
famous  murder  cases. 

Mr.  Graham  is  near  sixty  years  of  age  and  will  soon  retire  from 
practice.  Personally  he  is  of  strong  build,  medium  height,  with 
a  warm  face,  an  impassioned  manner,  a  man  of  large  resources  in 
law,  familiar  with  the  Bible  and  human  nature.  He  carries  a  jury 
by  the  force  of  his  powerful  illustrations  and  deep  earnestness. 

He  begins  by  a  judicious  selection  of  his  jury,  and  ends  with  an 
affecting  appeal.  He  speaks  at  great  length,  reads  long  extracts, 
quotes  extensively  from  various  cases,  especially  able  advocates  in 
similar  cases;  reading  whole  chapters  in  the  middle  of  his  address, 
and  carefully  commenting  on  the  force  and  reason  of  other  men's 
positions.  He  is  not  selfish,  but  generous,  and  gives  due  credit  to 
all  his  authors.  In  this  way  he  seems  always  to  be  telling  of  some- 
thing of  others  rather  than  of  the  case  at  bar;  yet  always  with  an 
eye  single  to  his  client's  interest.  The  whole  argument  sounds  like 
a  story,  in  short,  and  never  tedious,  chapters.  By  his  copious 
extracts  from  Scripture,  his  force  of  expression,  his  power  of  ren- 
dering words  effective,  he  adds  a  sacredness  to  his  theme  akin  to 
the  most  brilliant  passages  of  Burke.  His  strong  points  are  ever 
before  the  jury;  now  in  sarcasm,  now  in  irony,  then  in  pathos  and 
often  in  startling  sentences  that  make  one  shudder  at  the  deed  he 
denounces. 

The  attention  of  his  hearers  never  lags.  The  attendance  at  his 
speaking  is  limited  to  the  capacity  of  the  court  room.  With  a 
thrilling  exordium  he  passes  to  a  solid  structure  of  reasons,  built 
up  in  circles  so  strongly  coiled  together  as  to  end  in  a  cable  cord 
that  binds  a  jury  to  his  conclusions.  There  are  times  while  he  is 
speaking,  that  to  think  of  any  other  than  his  conclusions  would  be 
to  disbelieve  the  decision  of  courts,  the  sacredness  of  Scripture,  the 
wisdom  of  judges,  or  the  humanity  of  man. 


. 


184  MODERN  JURY  TRIALS. 


MB.  JOHN  GRAHAM'S  ARGUMENT. 

May  it  pleate  the  Court : 

GENTLEMEN  OF  THE  JURY — This  is  to  me  a  time  for  solemn 
thoughts,  and  I  rise  to  address  you  laboring  under  a  severe  struggle 
of  feeling.  It  is  a  beautiful  sentiment,  better  expressed  in  the  Latin, 
than  in  the  translation,  amicos  res  opimcs pariunt ;  adverse  probant. 
Prosperity  is  the  parent  of  friends;  bad  fortune  is  the  fire  in  which 
they  are  tried.  Friendship  is  the  most  sacred  of  all  artificial,  as 
distinguished  from  our  natural,  attachments.  It  stands  next  to 
those  which  by  the  hand  of  Nature  have  been  interwoven  with  the 
objects  which  she  herself  creates.  Upon  the  altar  of  this  relation 
I  cast  my  present  offering.  It  carries  with  it  the  unction  of  a 
warm  heart.  May  it  prove  to  be  an  efficacious  tribute  in  favor  of 
my  client!  I  have  been  the  companion  of  his  sunshine,  and  I  am 
now  called  here  to  participate  in  the  gloom  of  his  present  affliction. 

Trouble  is  a  mysterious  visitor.  It  seems  to  be  the  unshunnable 
doom  of  man.  It  has  been  well  said  that,  "Although  affliction 
cometh  not  forth  of  the  dust,  neither  doth  trouble  spring  out  of 
the  ground:  yet,  man  is  born  unto  trouble,  as  the  sparks  fly  upward." 
That  same  great  influence  which  has  impressed  laws  upon  all  the 
departments  of  creation — which  has  studded  the  heavens  with  their 
fires,  and  ordained  the  boundary  line  between  the  day  and  the 
night — that  same  great  influence  which  stretches  over  the  face  of 
Nature  verdure's  green  mantle,  and  again  supplants  it  for  the  less 
pleasing  dress  of  winter — that  same  great  influence  which  has  des- 
ignated the  time  for  the  dropping  of  the  leaves  and  the  falling  of 
the  sparrows — is  the  will  that  guides,  and  the  hand  that  holds  the 
rod,  with  which,  in  this  life,  we  are  punished.  As  we  pass  from 
the  proceedings  in  which  we  are  here  engaged,  may  we  be  per- 
mitted to  repeat  over  their  result  (which  I  confidently  anticipate), 
as  a  congratulation  to  this  defendant  for  the  severe  ordeal  through 
which  he  has  passed:  "  Behold,  happy  is  the  man  whom  God  cor- 
recteth:  therefore  despise  not  thou  the  chastening  of  the  Almighty: 
for  He  maketh  sore,  and  bindeth  up :  He  woundeth,  and  His  hands 
make  whole.  He  shall  deliver  thee  in  six  troubles:  yea,  in  seven 
there  shall  no  evil  touch  thee." 

A  few  weeks  since,  the  body  of  a  human  being  was  found  in  the 
throes  of  death,  in  one  of  the  streets  of  your  city.  It  proved  to  be 
the  body  of  a  confirmed — an  habitual  adulterer.  On  a  day  too 
sacred  to  be  profaned  by  worldly  toil — on  a  day  on  which  he  was 
forbidden  to  moisten  his  brow  with  the  sweat  of  honest  labor — on 


TRIAL  OF  DANIEL  E.  SICKLES.  135 

a  day  on  which  he  should  have  risen  above  the  grossness  of  his 
nature,  and  though  on  no  other  day  he  had  sent  his  aspirations 
heavenward,  he  should  have  allowed  them  then  to  pass  in  that 
direction — we  find  him  besieging  with  the  most  evil  intentions  that 
castle  where,  for  their  security  and  repose,  the  law  had  placed  the 
wife  and  child  of  his  neighbor.  Had  he  observed  the  solemn  pre- 
cept, "  Remember  the  Sabbath  day,  to  keep  it  holy,"  he  might  at 
this  moment  have  been  one  of  the  living.  The  injured  husband 
and  father  rushes  upon  him  in  the  moment  of  his  guilt,  and,  under 
the  influence  of  phrensy,  executes  upon  him  a  judgment  which  was 
as  just  as  it  was  summary. 

The  issue  which  you  are  to  decide  here  is,  whether  this  act  ren- 
ders its  author  amenable  to  the  laws  of  the  land.  In  the  decision 
of  this  issue,  gentlemen  of  the  jury,  you  have  a  deep  and  solemn 
interest.  You  are  here  to  fix  the  price  of  the  marriage  bed.  Tou 
are  here  to  say  in  what  estimation  that  sacred  couch  is  held  by  an 
honest  and  an  intelligent  American  jury.  You  are  favored  citizens. 
You  live  in  the  city  which  constitutes  the  seat  of  our  Federal  gov- 
ernment; a  city  consecrated  to  liberty  above  all  others,  but  not  to 
the  liberty  of  the  libertine;  a  city  bearing  the  name  of  the  illustri- 
ous Washington,  the  "Father  of  his  Country,"  of  whom  it  has 
been  emphatically  and  truly  said,  that  he  was  "first  in  war,  first  in 
peace,  and  first  in  the  hearts  of  his  countrymen."  You  may  feel 
a  pity,  in  reviewing  this  occurrence,  for  the  life  which  has  been 
taken;  you  may  regret  the  necessity  which  constrained  that  event; 
but,  while  you  pity  the  dead,  remember,  also,  that  you  should 
extend  commiseration  to  the  living.  That  life,  taken  away  as  it 
was,  may  prove  to  be  your  and  my  gain.  You  know  not  how  soon 
the  wife  and  daughter  of  some  one  of  you  would  have  been — nay, 
you  know  not  but  what  she  had  already  been — marked  by  the  same 
eyes  which  doomed  and  destroyed  the  marriage  relations  of  this 
defendant.  You  know  not  how  soon  the  gardens  of  loveliness  over 
which  you  now  preside,  had  that  life  been  spared,  would  have  been 
called  upon,  by  the  deceased,  to  supply  their  flower,  wherewith  to 
gratify  his  wicked,  yet  insatiable  appetite. 

An  interference  with  the  marriage  relation  must  strike  every 
reflecting  mind  as  the  greatest  wrong  that  can  be  committed  upon 
a  human  being.  It  has  been  well  said  that  affliction,  shame,  pov- 
erty, captivity,  are  preferable;  and  I  do  not  know  that  I  can  express 
the  sentiment  more  happily  than  in  reciting  the  lines  which  the 
great  dramatist  has  placed  in  the  mouth  of  the  Moor,  over  the  sup- 
posed discovery  of  the  inconstancy  of  his  Desdemona: 


136  MODERN  JURY  TRIALS. 

"  Had  it  pleas'd  Heaven 
To  try  me  with  affliction;  bad  he  raln'd 
All  kinds  of  sores  and  shames  on  my  bare  head; 
Bleeped  me  in  poverty  to  the  very  lips; 
Given  to  captivity  me  and  my  utmost  hopes; 
1  should  have  found  in  some  part  of  my  soul 
A  drop  of  patience:  but.  alas!  to  make  tna 
A  fixed  figure  for  the  hand  of  scorn 
To  point  his  slow,  unmoving  finger  at, 
Oh!  Oh! 

Yet  I  could  bear  that,  too;  well,  very  weD. 
But  there,  where  I  have  garnered  up  my  heart; 
Where  either  I  must  live  or  bear  no  life; 
The  fountain  from  the  which  my  current  runs, 
Or  else  dries  up:  to  be  discarded  thence. 
Or  keep  it  as  a  cistern,  for  foul  toads 
To  knot  and  gender  in  I— turn  thy  complexion  there 
Patience,  thou  young  and  rose-lipped  cherubim; 
Aye,  there  look  grim  as  helL" 

You  are  here  to  decide  whether  the  defender  of  the  marriage  bed 
is  a  murderer — whether  he  is  to  be  put  on  the  same  footing  with 
the  first  murderer,  and  is  to  be  presented  in  his  moral  and  legal 
aspects  with  the  same  hues  of  aggravation  about  him. 

Gentlemen,  the  murderer  is  a  most  detestable  character.  Far  be 
it  from  me  to  defend  him  before  this  or  any  other  jury.  Society 
cannot,  it  ought  not,  to  contain  him.  Calm,  cold,  and  calculating, 
he  saves  his  malice  as  the  miser  saves  his  treasure.  His  bosom  is 
the  vault  in  which  he  deposits  it.  Age  possesses  no  claim  upon  his 
consideration — nor  does  sex  interfere  with  him  in  the  execution  of 
his  bloody  purpose.  In  the  very  air  he  sees  his  weapon,  and  it 
marshals  him  "the  way  that  he  was  going."  He  selects  some 
object  of  innocence  for  his  victim,  and  chooses  some  lonely  spot  for 
the  perpetration  of  his  horrid  deed.  In  the  drapery  of  the  Night 
he  wraps  himself — and  at  that  hour  when 

14  O'er  the  one  half  world 
Nature  seems  dead,  and  wicked  dreams  abuse 
The  curtain'd  sleeper," 

he  steals  forth  to  the  accomplishment  of  his  bloody  design.  Afraid 
of  his  own  movements,  he  is  compelled  to  address  the  very  Earth 
itself  in  the  language  of  supplication — and  entreat  it  to 

"  Hear  not  his  steps,  which  way  they  walk,  for  fear 
The  very  stones  prate  of  his  whereabout." 

Another  feature  of  the  case  to  be  borne  in  mind  by  the  jury  is 
this  :  the  extraordinary  character  of  the  opening  of  the  learned 
counsel  for  the  Government.  It  was  an  able,  it  was  an  eloquent 
production.  It  reflected  credit  upon  the  mind  from  which  it  eman- 
ated, for  it  was  stamped  with  a  high  order  of  ability  ;  but  it  will 
be  for  you,  gentlemen,  to  say,  when  you  pass  that  opening  in 


TRIAL  OF  DANIEL  E.  SICKLES.  137 

review  before  your  minds,  whether  or  not  it  was  warranted  by  the 
humanity  that  should  ever  attach  itself  to  his  position.  You  will 
remember  the  extraordinary  expressions  of  the  "  prisoner  coming 
to  this  carnival  of  blood,"  of  his  being  "  a  walking  magazine,"  of 
his  "  adding  mutilation  to  murder,"  of  his  "  standing  bravely  over 
his  victim,"  as  though  with  dagger  drawn  ready  to  plunge  it  in  his 
bosom.  Gentlemen,  you  would  have  thought,  from  his  opening, 
that  the  learned  counsel  for  the  Government  was  describing  a  case 
of  the  most  deliberate  homicide — and  yet  the  case  he  was  describ- 
ing was  the  case  of  a  man  who,  while  acting  from  a  sense,  and 
under  the  influence  of  a  sense,  of  right,  was  nevertheless,  no  doubt, 
at  that  particular  juncture  entirely  bereft  of  his  reason.  At  tne 
time  he  alluded  to  the  magazine,  which  he  described  as  being  in 
the  possession  of  the  defendant,  did  it  occur  to  the  learned  counsel 
for  the  prosecution  to  describe  also  the  weapons  that  were  in  the 
possession  of  the  adulterer  ?  For  with  his  opera-glass  and  white 
handkerchief  he  was  capable  of  carrying  death  just  as  certainly  to 
the  domicil  of  the  defendant,  as  the  weapons  with  which  this 
defendant  was  provided,  were  capable  of  carrying  death  to  him. 
The  sight  of  that  opera-glass,  and  those  other  appliances  with 
which  the  deceased  was  furnished,  in  the  prosecution  of  his  unhal- 
lowed purposes,  were  just  as  certain  death  to  the  happiness,  and 
hopes  of  the  defendant,  as  though  the  pistol  of  that  adulterer  had 
been  presented  at  his  breast. 

*          *          *         *          ****** 

Gentlemen  of  the  jury,  I  ask  you  this  :  Why  is  it  that  this  prose- 
cution is  thus  technically  managed  ?  Is  there  anything  behind, 
which,  if  it  escaped,  would  satisfy  this  jury  that  this  is  an  unhal- 
lowed prosecution  ?  I  do  not  mean  by  this  to  impeach  the  integ- 
rity of  the  authorities  in  any  way ;  I  use  the  word  unhallowed 
rather  in  the  sense  that  it  ought  not  to  succeed  through  the  instru- 
mentality of  an  intelligent  jury.  Is  there  anything  in  this  prose- 
cution which  requires  that  the  case  should  be  tried  in  the  way  in 
which  it  has  been  tried;  that  from  this  jury  all  but  property- 
holders  should  be  excluded  ;  that  in  the  opening  address  of  thf 
learned  counsel  for  the  Government  the  occurrence  should  be  pre- 
sented under  a  hue  which  the  facts  do  not  impart  to  it ;  that  strong 
extra  counsel  should  be  employed  in  order  to  sustain  the  prosecu- 
tion ;  and  that  witnesses  should  be  examined  in  a  particular  torm 
so  as  to  exclude  from  the  ears  of  this  jury,  that  fact  which,  when 
it  becomes  a  part  of  this  case,  must  incline  the  scale  in  favor  of 
the  defendant  ?  It  will  be  for  you,  under  all  the  circumstances  as 


138  MODERN  JURY  TRIALS. 

I  have  presented  them  to  you,  to  account  for  these  extraordinary 
features  in  this  prosecution. 

In  relation  to  your  province,  gentlemen  of  the  jury,  as  I  under- 
stand it,  the  court  has  invested  you  with  the  largest  powers.  I 
have  read  several  of  the  charges  of  the  learned  judge  upon  the 
bench  to  juries,  and  I  find  that  he  is  imbued  with  a  spirit  which 
has  been  only  exemplified  in  an  equal  degree  in  one  instance,  to  my 
knowledge,  by  any  other  jurist,  and  that  is  by  the  great  Chancellor 
Kent.  The  greatest  champion  that  juries  ever  had  in  this  country 
was  probably  that  great  and  now  deceased  jurist ;  and  the  same  spirit 
which  seems  to  have  entered  into  the  instructions  and  judgments 
of  that  learned  jurist,  with  reference  to  the  rights  of  juries,  appears 
to  influence  the  learned  judge  upon  the  bench  in  relation  to  your 
province.  As  I  understand  the  law  of  this  court,  every  fact  is  to 
be  passed  upon  by  the  jury — not  only  the  facts  entering  into  the 
occurrence,  which  is  charged  as  a  crime,  but  the  state  of  mind — the 
intention — the  motives — that  impalpable  influence,  if  there  was 
such  an  influence — which  set  on  the  defendant  to  the  commission 
of  the  act,  for  which  he  is  now  arraigned  as  a  criminal  before  you. 
So  far  as  the  definition  of  offenses  is  concerned  in  this  case,  resort 
is  to  be  had  to  the  common  law  of  England;  and  the  trial  by  jury, 
in  this  district,  is  to  be  according  to  the  course  of  that  same  com- 
mon law,  except  as  modified  by  the  genius  of  our  institutions,  or 
as  changed  by  the  Constitution  and  laws  of  the  United  States,  or 
the  law  of  the  State  of  Maryland,  as  continued  over  this  district  by 
Federal  legislation.  As  to  the  crimes  claimed  to  be  involved  in  this 
proceeding,  let  me  first  ask  your  attention  to  the  definition  of 
"murder,"  as  given  in  4th  Blackstone's  Commentaries,  page  195, 
a  book  of  the  highest  authority,  and  the  law,  as  here  laid  down,  is 
to  control  you  in  the  discharge  of  your  present  duty.  Blackstone, 
borrowing  his  definition  from  Coke,  thus  defines  murder  : 

"When  a  person  of  sound  memory  and  discretion  unlawfully 
killeth  any  reasonable  creature  in  being  and  under  the  king's  peace 
with  malice  aforethought,  either  express  or  implied." 

We  have  no  king,  and  therefore,  to  carry  out  this  definition,  we 
must  substitute  in  place  of  "  the  king's  peace,"  "  the  peace  of  the 
People  of  the  United  States." 

I  shall,  in  another  branch  of  the  case,  consider  this  question, 
whether  at  the  time  of  the  death  of  the  deceased,  he  was  in  the 
peace  of  the  People  of  this  great  government,  whether  the  adul- 
terer, when  he  goes  forth  upon  his  mission,  does  not  cease  to  be  in 
the  peace  of  the  community,  and  whether  he  is  not  making  direct 
war  upon  those  great  fundamental  principles  upon  which  not  only 


TRIAL  OF  DANIEL  E.  SICKLES.  139 

the  institution  of  marriage  itself  rests,  but  upon  which  our  social 
fabric  is  founded. 

The  definition  of  manslaughter  is  given  on  page  191  of  the  same 
book.  It  is  there  thus  defined  : 

"The  unlawful  killing  of  another,  without  malice  either  express 
or  implied,  which  may  be  either  voluntarily,  upon  a  sudden  heat, 
or  involuntarily,  but  in  the  commission  of  some  unlawful  act." 

The  difference  between  murder  and  manslaughter  (as  was  stated 
by  the  learned  counsel  for  the  Government),  is  this  :  the  one  is 
supposed  to  be  committed  in  cold  blood  as  the  result  of  premedita- 
tion, and  the  other  is  supposed  to  be  committed  in  a  state  of  heat 
resulting  from  passion,  but  resulting  from  passion  which  ought  to 
be  controlled,  but  is  not  controlled  ;  for  passion  which  cannot  be 
controlled  is  not  passion  which  places  any  man  within  the  pale  of 
criminal  accountability. 

In  this  connection  let  me  also  ask  the  attention  of  the  court  and 
jury  to  Foster's  Crown  Law,  page  290,  which,  although  it  is  an  old 
treatise,  nevertheless  is  one  of  the  purest  and  most  reliable  oracles 
from  which  legal  knowledge  can  be  gained.  This  author  says, 
speaking  of  manslaughter : 

"  I  now  proceed  to  that  species  of  felonious  homicide,  which  we 
call  manslaughter,  which,  as  I  before  observed,  the  benignity  of  our 
law,  as  it  standeth  at  present,  imputeth  to  human  infirmity  /  to  in- 
firmity which,  though  in  the  eye  of  the  law  criminal,  yet  is  consid- 
ered as  incident  to  the  frailty  of  the  human  frame." 

I  refer,  also,  to  pages  256  and  257  of  the  same  treatise,  for  a 
definition  of  malice.  This  point  is  important,  for  the  great  question 
to  be  solved  by  the  jury  in  this  case  is,  What  was  the  state  of  the 
defendant's  mind  at  the  time  he  slew  the  man  who  had  contamina- 
ted the  purity  of  his  wife  ? 

That  is  the  cardinal  question  here.  The  counsel  for  the  defense 
noticed,  on  the  first  day  on  which  the  witnesses  for  the  Govern- 
ment gave  their  evidence,  that  some  of  the  jurors  took  notes  of  the 
testimony  given  as  to  the  mode  or  circumstances  of  the  killing;  but 
as  we  understand  or  look  upon  this  case,  it  is  perfectly  immaterial 
how  death  was  inflicted;  whether  it  was  the  result  of  one  shot  or 
of  thirty  shots;  whether  the  man  who  was  killed  stood  up  or  lay 
down.  The  inquiry  upon  this  part  of  the  case,  at  least,  is, 
what  was  the  influence  of  the  provocation  he  gave,  upon  the 
mind  of  the  man  who  slew  him;  what  was  the  condition  of  the 
mind  of  the  defendant  at  the  time  he  killed  the  deceased. 

If  the  transaction  was  presided  over  by  a  mind  perfectly  self- 
possessed,  that  may  constitute  a  different  question,  although,  in 


140  MODERN  JURY  TRIALS. 

some  of  the  aspects  in  which  I  shall  hereafter  present  this  case, 
even  that  would  not  be  conclusive  in  establishing  that  there  was 
any  criminality  on  the  part  of  the  defendant.  But  assuming,  for 
the  sake  of  the  argument,  that,  under  other  circumstances',  the  act 
of  slaying  would  be  a  crime,  then  the  inquiry  is,  What  was  the  con- 
dition of  the  mind  of  the  defendant  at  the  time  of  the  perpetration 
of  his  act  ? 

Serjeant  Foster  says  that  the  term  malice,  in  this  instance, 
signifieth — 

"  That  the  fact  hath  been  attended  with  such  circumstances  as 
are  the  ordinary  symptoms  of  a  Wicked,  depraved,  malignant 
spirit." 

Do  you  mean  to  tell  me  that  the  ordinary  symptoms  of  a  wicked, 
depraved,  malignant  spirit  attend  the  act  of  the  husband  who  slays 
the  man  who  has  polluted  his  wife  ?  What  distinction,  then,  do 
you  draw  between  the  case  of  a  man  who  slays  in  order  to  commit 
a  crime  and  that  of  the  man  who  slays  in  order  to  prevent  the  com- 
mission of  a  crime?  Unless,  gentlemen  of  the  jury,  you  are  pre- 
pared to  find  that  the  act  of  the  husband  who  vindicates  his  mar- 
riage bed,  by  slaying  the  man  who  dares  to  defile  it,  is  symptomatic 
of  a  "  wicked,  depraved  and  malignant  spirit,"  there  would  seem  to 
be  an  end  of  the  case,  upon  this  branch  of  it. 

But  to  proceed  with  our  author:  After  saying  that  malice,  in 
reference  to  the  crime  of  murder,  is  not  to  be  understood  in  the 
restrained  sense  of  "  a  principle  of  malevolence  to  particulars,"  he 
proceeds: 

"  For  the  law,  by  the  term  malice,  in  this  instance,  meaneth  that 
that  the  fact  hath  been  attended  with  such  circumstances  as  are  the 
ordinary  symptoms  of  a  wicked,  depraved,  malignant  spirit." 

u  In  the  case  of  an  appeal  of  death,  which  was  anciently  the 
ordinary  method  of  prosecution,  the  term  malice  is  not,  as  I  remem- 
ber, made  use  of  as  descriptive  of  the  offense  of  murder  in  contra- 
diction to  simple  felonious  homicide.  The  precedents  charge  that 
the  fact  was  done  nequiter  (wantonly,  craftily),  et  in  felonia 
(feloniously),  which  fully  taketh  in  the  legal  sense  of  the  word 
malice.  The  words  per  malitiam  (by  malice)  and  malitiose  (mali- 
ciously), our  oldest  writers  do  indeed  frequently  use  in  some  other 
cases;  and  they  constantly  mean  an  action  flowing  from  wicked  and 
corrupt  motive — a  think  done  malo  animo  (with  a  bad  or  depraved 
mi»d),  mala  conscientia  (a  wicked  heart  or  conscience),  as  they 
express  themselves." 


TRIAL  OF  DANIEL  E.  SICKLES.  141 

The  same  author  further  says: 

"  The  legislature  hath  likewise  frequently  used  the  terms  *  mal- 
ice' and  'maliciously'  in  the  same  general  sense,  as  denoting  a 
wicked,  perverse  and  incorrigible  disposition." 

Again — on  the  same  page: 

"  The  mains  animus  (the  evil  or  wicked  mind)  which  is  to  be 
collected  from  all  circumstances,  and  of  which,  as  I  before  said,  the 
court,  and  not  the  juiy,  is  to  judge  [which  was  the  law  when  this 
author  wrote],  is  what  bringeth  the  offense  within  the  denomina- 
tion of  willful,  malicious  murder,  whatever  might  be  the  immediate 
motive  to  it;  whether  it  be  done,  as  the  old  writers  express  them- 
selves, ira  (in  or  from  anger),  vel  odio  (or  hatred),  vel  causa  lucri 
(or  for  the  sake  of  gain),  or  from  any  other  wicked  or  mischievous 
incentive." 

"  And  I  believe  most,  if  not  all  the  cases  which  in  our  books  are 
ranged  under  the  head  of  '  Implied  Malice,'  will,  if  carefully 
adverted  to,  be  found  to  turn  upon  this  single  point,  that  the  fact 
hath  been  attended  with  such  circumstances  as  carry  in  them  the 
plain  indications  of  an  heart  regardless  of  social  duty,  and  fatally 
bent  upon  mischief." 

Contemplating  this  proceeding,  in  reference  to  the  charge  of 
murder,  you  behold,  in  these  citations,  gentlemen  of  the  jury 
the  hideousness  of  the  peculiar,  the  animating  principle  of  that 
crime. 

In  order  to  constitute  "  malice,"  as  that  term  is  understood  in 
reference  to  murder,  you  must  find  that  the  act,  which  is  alleged 
to  be  malicious,  was  the  result  of  a  wicked,  depraved  and  malig- 
nant spirit;  and  if  you  can  ascribe  a  spirit  of  that  mind  to  the  act 
of  the  husband  who  slays  in  defense  of  his  marriage  bed,  then  I 
have  the  honor  to  address  gentlemen  differently  constituted  from 
what  I  supposed  you  to  be. 

I  must  now  pass  on  to  another  subject.  Having  given  you  tha 
definitions  of  murder  and  of  manslaughter,  you  are  required  to  say, 
in  the  discharge  of  your  duty  ultimately,  whether  this  case  cornea 
within  either  of  those  definitions — whether  the  act  of  the  defend- 
ant, within  either  of  those  definitions,  was  or  is  evincive  of  a  crim- 
inal heart.  If  it  is  a  crime  for  a  husband  to  defend  his  altar,  his 
humble  family  altar,  and  if  death  is  to  be  visited  upon  him  for 
defending  it,  then  the  highest  honor  that  can  be  conferred  upon  any 
man  is  to  compel  him  to  die  such  a  death. 

Now,  three  things  are  to  be  noticed:  first,  that  human  laws  do 


142  MODERN  JURY  TRIALS. 

not  shield  us  in  the  enjoyment  of  all  our  rights;  second,  that  a 
right  created  by  divine  law  is  perfect,  though  not  recreated  by 
human  law;  and,  third,  that  to  certain  relations  the  divine  law  has 
attached  responsibilities  to  execute  which  is  not  to  commit  a  crime. 
The  two  first  considerations  are  properly  discussed  together,  and, 
by  way  of  enforcing  them  upon  your  minds,  we  insist  that  our 
legal  system  does  not  reach  the  case  of  every  wrong  that  can  befall 
us.  There  are  certain  wrongs  which  we  are  not  protected  against 
at  all  by  human  laws,  and  therefore  the  only  law  which  protects  us 
against  them  is  that  which  is  traced  in  the  human  bosom  by  the 
finger  of  God  —  the  law  of  human  nature;  the  law  of  human  instinct. 
When  human  laws  do  not  protect  us  against  injury,  we  appeal  to 
our  instincts;  we  are  thrown  upon  the  law  of  our  instincts,  and  have 
a  right  to  defend  ourselves  against  those  wrongs.  This  position 
will  be  perceived,  upon  examination,  to  be  well  founded.  There 
is  no  law  in  this  district  which  says  you  have  a  right  to  defend 
yourself  against  attack,  except  the  law  of  nature.  It  would  be 
folly  to  pass  a  statute  to  declare  that  a  man  may  defend  himself 
against  the  assault  of  a  highwayman;  or  if  a  statute  were  passed 
on  a  subject  like  that,  it  would  be  folly  to  say  that,  before  the 
statute  was  passed,  you  had  not  the  right  of  defense, 


ervation  is  nature's  great  law,  and  it  overrides  all  other  laws,  Two 
men  are  floating  on  a  plank,  and  it  is  necessary  that  one  shoui 
'drowned  in  order  that  the  other  may  be  saved.  It  is  not  murder. 
in  the  person  who,  to  save  his  own  life,  drowns  the  other,  when  two 
persons  are  so  situated,  because  the  law  considers  that  all  social 
regulations  must  yield  to  those  great  principles  which  are  implanted 
in  us,  and  are  a  part  of  us  as  we  came  from  the  hands  of  the  great 
Creator. 

Sergeant  Foster,  at  page  273  of  his  Treatise,  says: 

"The  right  of  self-defense  in  these  cases  (alluding  to  the  cases 
in  which  the  right  can  be  availed  of),  is  founded  in  the  law  of 
nature,  and  is  not,  nor  can  be,  superseded  by  any  law  of  society. 
For  before  civil  societies  were  formed,  one  may  conceive  of  such  a 
state  of  things,  though  it  is  difficult  to  fix  the  period  when  civil 
societies  were  formed,  I  say  before  societies  were  formed  for  mutual 
defense  and  preservation,  the  right  of  self-defense  resided  in  indi- 
viduals; it  could  not  reside  elsewhere.  And  since,  in  cases  of 
necessity,  individuals  incorporated  into  society  cannot  resort  for 
protection  to  the  law  of  the  society,  that  law,  with  great  propriety 
and  strict  justice,  considereth  them  as  still  in  that  instance  undei 
the  protection  of  the  law  of  nature.** 


TRIAL  OF  DANIEL  E.  SICKLES.  143 

What  is  the  law  of  self-defense  ?  Is  it  merely  defending  your- 
self, and  allowing  any  person  that  comes  along  to  slay  your  wife, 
or  your  child  ?  Is  that  the  law  of  self-defense — or  is  there  not 
some  relative  duty  cast  upon  you  ?  Has  the  Creator  made  you  so 
abominably  selfish  that  you  satisfy  the  demands  of  your  nature 
when  you  defend  yourselves,  though  you  allow  the  partners  of 
your  bosoms,  or  the  offspring  of  your  loins,  to  be  stricken  down 
under  your  eyes?  It  is  not  so,  as  I  shall  presently  show  you;  and 
that  involves  the  consideration  of  the  last  of  the  propositions  to 
which  I  have  thus  preliminarily  directed  your  attention. 

The  authority  cited  proves  that,  to  a  certain  extent,  nature's  law 
is  our  protection,  and  that  social  laws  cannot  supersede  or  divest 
us  of  that  protection,  and  that  as  to  all  rights  falling  within  the 
pale  of  nature's  law,  the  great  council  chamber  of  Jehovah  is  the 
source  from  which  the  law  is  to  come. 

If,  as  you  will  shortly  see,  by  numerous  citations  from  Scripture, 
the  adulterer  is  allowed  to  be  slain  by  the  law  of  God,  and  the 
right  of  a  man  to  protect  his  wife  against  contamination  is  made  a 
natural  right,  then,  within  the  authority  which  I  have  read  to  you, 
it  is  not  in  the  power  of  human  laws  to  take  away  that  right  from 
those  upon  whom  it  is  thus  conferred.  Do  you  mean  to  tell  me 
that,  when  the  great  Being  above  said,  "  thou  shalt  not  steal,"  it 
was  not  as  high  a  crime  to  steal  before,  as  it  is  after  human  legis- 
lation has  said,  "  thou  shalt  not  steal  ?"  When  the  great  Being 
above  said,  "  thou  shalt  not  kill,"  and  "  thou  shalt  not  bear  false 
witness  against  thy  neighbor,"  those  crimes  were  perfect.  He 
himself  pronounced  those  ordinances.  Human  laws  may  enforce 
them  with  additional  sanctions,  but  do  not  impart  them  additional 
solemnity.  The  crimes  would  be  just  as  great  and  smell  as  rank 
in  the  nostrils  of  Heaven,  if  human  legislation  should  ignore  the 
subject  entirely,  as  if  human  legislatures  had  undertaken  to  embody 
all  that  is  in  the  Decalogue  in  their  own  statutes.  In  this  district 
no  protection  is  provided  against  the  adulterer,  unless  you  can  pro- 
tect yourself  against  him.  There  is  no  law  which  furnishes  that 
protection.  What  is  the  inevitable  result  ?  Why,  that  you  are 
thrown  upon  .the  principle  se  et  sua  defendendo — of  defending  your- 
self and  your  own.  Not  to  be  so  abominably  selfish  as  to  defend 
yourself,  and  let  your  own  be  taken  from  you — but  to  defend  both 
yourself  and  your  own.  Do  you  not  wish  to  be  as  safe  against  the 
adulterer  as  against  the  housebreaker  ?  Has  society  redeemed  its 
compact  with  you  when  it  protects  you  from  the  attacks  of  the 
housebreaker  by  night,  but  permits  your  house,  when  you  have  left 
it  during  the  day  to  pursue  your  honest  toil,  tq  be  polluted  by  the 


144  MODERN  JURY  TRIALS. 

tread  of  the  adnlterer?  One  reason,  then,  we  are  bound  to  sup- 
pose, why  society  has  not  provided  by  positive  legislation  against 
the  act  of  the  adulterer,  is  that  it  considers  that  the  natural  right 
of  a  man  to  protect  himself  against  that  malefactor  is  as-  perfect 
under  the  Divine  law  as  is  his  right  to  protect  himself  against  any 
other  violator  of  his  natural  rights.  Gentlemen,  there  is  nothing 
in  this  doctrine  revolutionary  or  subversive  of  the  peace  and  good 
order  of  society.  Where  society  has  protected  us,  we  are  not 
thrown  upon  the  law  of  self-defense,  but  where  society  has  not 
protected  us,  we  are  thrown  upon  that  law.  In  this  district  there 
is  no  law  which  protects  you  against  the  man  who  would  rob  you 
of  the  affections  of  your  wives,  unless  it  is  engraven  upon  your 
hearts  by  the  hand  of  the  Great  Being  who  made  you. 

You  will  see  more  plainly  the  importance  of  this,  gentlemen  of 
the  jury,  when  I  come  to  construct  the  argument  which  I  design 
addressing  you  from  the  Scriptures,  as  to  the  heinousness  of  the 
offense  of  the  adulterer,  as  it  is  stamped  upon  his  act  by  the  law  of 
God. 

We  may  assume,  then — and  I  state  it  as  a  proposition — that 
whenever  a  right  is  given  by  the  law  of  God,  even  though  not 
expressly  recognized  by  human  law,  and  the  violation  of  that  right 
is  denounced  by  the  moral  law  as  an  offense  of  aggravated  hue,  to 
defend  oneself  against  its  violation,  is  acting  upon  the  principle  of 
self-defense.  The  law  says  that  no  man  shall  enter  your  house  at 
night  to  rob  it,  and  that  if  any  one  does  so,  and  you  detect  him  in 
the  act,  that  you  have  a  right  to  defend  yourself  and  your  o\vn 
against  him,  even  to  the  extent  of  taking  his  life.  If  human  law 
can  give  you  a  right  to  take  away  the  life  of  a  man  when  he  is 
committing  an  offense  which  it  has  made  an  offense,  why  have  not 
you  the  same  right  in  reference  to  the  Divine  law,  when  it  has 
declared  an  offense  to  be  equally  heinous  with  the  one  created  by 
human  legislation?  As  will  presently  appear,  under  the  Divine 
law,  it  is  a  great  deal  more  aggravated  an  offense  to  contaminate 
the  wife  of  your  neighbor  than  to  enter  his  house  at  night  for  the 
purpose  of  robbing  it,  and  if  human  law  confer  upon  you  the  right 
to  kill  the  burglar,  the  Divine  law  can  impart  to  you  the  right  to 
kill  the  adulterer.  You  will  bear  in  mind  that  I  am  not  insisting 
that  a  man  has  a  right  to  kill  even  an  adulterer,  as  the  result  of 
cold,  deliberate  thought.  This  is  not  such  a  case;  for,  unfortun- 
ately in  this  case,  the  deceased  was  caught,  if  not  in  the  fact  of 
adultery,  at  least  so  near  the  fact,  as  to  leave  not  the  least  doubt 
of  his  guilt.  The  defense  regard  this  as  a  very  important  point, 
and  as  I  am  about  leaving  it,  I  will  state  it  to  you  again.  We  say 


TRIAL  OF  DANIEL  E.  SICKLES.  145 

this:  That  if  society  has  not  protected  you  in  the  possession  of  your 
wives,  it  is  proof  conclusive  that  society  meant  that  your  right  to 
their  possession  should  remain  as  at  nature — and  that  the  right  to 
protect  the  purity  of  your  wives  is  a  natural  right  which  you  can 
assert  even  to  the  extent  of  killing  whoever  seeks  to  deprive  you 
of  it,  as  much  as  you  can  kill  for  the  purpose  of  protecting  your 
own  lives.  We  may  assume,  then,  that  wherever  a  right  is  given 
by  the  law  of  God,  even  though  not  expressly  recognized  by  human 
law,  and  the  violation  of  that  right  is  denounced  by  the  moral  law 
as  an  offense  of  an  aggravated  hue,  to  defend  oneself  against  its 
violation  is  an  act  based  upon  the  principle  of  self-defense.  As 
has  been  already  seen,  this  is  not  a  selfish  principle;  it  extends  to 
the  protection  of  your  own  as  well  as  to  the  protection  of  your- 
selves. If  you  can  kill  in  defending  yourself  against  an  offense 
declared  felony  by  human  laws,  and  be  blameless,  why  not  when 
the  Divine  law  makes  an  act  against  you  the  greatest  conceivable 
offense?  It  would  be  an  outrage  upon  all  decency  to  compare  a 
a  felony  created  by  a  human  law  with  such  an  offense  as  adultery 
is  made  by  the  Bible.  I  shall  show  you,  by  abundant  citations 
from  that  sacred  book,  that  one  of  the  most  serious  offenses  that 
can  be  committed  against  the  Divine  law  is  this  crime  of  adultery. 
Human  laws  may  enforce  obedience  to  the  Bible,  by  their  own 
sanctions.  They  may  create  or  multiply  penalties — but  do  they, 
can  they,  increase  or  add  to  its  moral  obligation  ?  As  well  might 
they  seek  to  repeal  its  commandments,  as  to  lend  them  any  force 
by  re-enacting  them! 

It  may  be  said  that  Mr.  Sickles  had  a  civil  remedy,  and  could 
have  brought  an  action  for  damages.  Would  this  have  staunched 
his  wounds?  Could  the  purity  of  his  wife  be  paid  for  by  a  few 
paltry  dollars  ?  Could  that  course  afford  any  adequate  satisfaction 
for  the  injury  inflicted  upon  him  ?  If  an  individual  conies  into 
your  house,  and  lies  upon  your  bed,  against  your  will,  he  commits 
a  trespass,  and  you  can  repel  him  by  force.  If  an  individual  comes 
into  your  house,  and  lies  with  your  wife,  and  robs  her,  and  you,  of 
that  which  cannot  be  restored,  and  for  which  no  recompense  can  be 
made,  can  you  not  repel  this  invasion  by  force  ?  Can  your  wives 
be  used  with  impunity  when  your  furniture  cannot?  What  furni- 
ture for  your  homes  like  a  wife  ! 

This  brings  me  to  the  last  of  the  three  propositions  advanced  in 
this  connection,  and  that  is,  that  there  are  certain  relations  to  which 
the  Divine  law  attaches  the  greatest  responsibilities,  and  which  it 
invests  with  commensurate  powers.  Of  these,  the  relations  of  par- 
ent and  child,  and  husband  and  wife,  are  the  most  hallowed — the 
10 


146  MODERN  JURY  TRIALS. 

most  cherished.  It  may  not  be  the  right  of  a  brother,  probably,  to 
slay  in  the  defense  of  a  sister,  unless  he  should  be  present  at  the 
time  an  offense  was  attempted  against  her  person — because  the 
attachment  which  connects  a  brother  with  a  sister  is  one  of  love — 
they  come  from  the  same  parents.  The  relation,  however,  which 
exists  between  parent  and  child,  and  husband  and  wife,  is  not  only 
one  of  love,  but  of  protection.  For  such  relations,  the  Divine  law 
has  created  the  duty  of  protection,  and  the  right  to  kill  in  the  dis- 
charge of  that  duty  is  a  proper  one,  and  cannot  be  questioned  by  a 
human  tribunal — at  least,  provided  the  circumstances  under  which 
the  killing  takes  place  are  such  as  not  to  note  that  extreme  malice 
of  the  heart  against  which  social  laws  are  designed  to  protect  us. 

It  was  this  idea  of  inferiority  on  the  part  of  the  wife  to  the  hus- 
band which  made  the  act  of  the  wife,  where  she  killed  the  husband, 
what  the  common  law,  in  olden  time,  denominated  parva  proditio, 
petit  treason.  High  treason,  at  common  law,  was  rebellion  against 
the  sovereign,  insubordination  toward  the  government — but  petit 
treason  was  the  insubordination  of  the  wife  to  that  yoke  which  her 
relations  require  her  to  wear,  as  it  were,  upon  her  neck.  The  rising 
of  the  wife  against  the  husband  was  as  much  considered  the  rising 
of  an  inferior  against  a  superior,  as  the  rising  of  a  subject  against 
the  sovereign;  and  the  law,  by  way  of  characterizing  the  enormity 
of  the  act  on  her  part,  denominated  it  petit  treason,  in  analogy  to 
that  offense  which,  when  attempted  against  the  government,  con- 
stituted high  treason.  The  law,  in  this  respect,  is  founded  upon 
the  Divine  law,  for  the  mandate  of  the  Bible,  to  wives,  is,  "  Love 
your  husbands,  obey  them,  submit  yourselves  unto  them."  The 
husband  is  the  protector — the  master  of  the  wife.  Her  sex  is  sup- 
posed to  render  her  unable  to  protect  herself,  and  hence  it  is  the 
duty  of  the  strong  arm  of  the  man  to  defend  himself  and  his  wife 
against  the  wrongs  which  may  be  inflicted  upon  them,  either  with 
the  connivance  of  the  wife,  in  which  case  she  is  to  be  regarded  as 
the  slave  of  her  own  frailty,  or  as  the  result  of  violence  on  the  part 
of  another. 

We  know  that  it  has  been  said,  "Frailty,  thy  name  is  woman.** 
With  all  our  exalted  conceptions  of  the  perfection  of  female  char- 
acter, who  is  not  compelled  to  acknowledge  its  extreme  frailty  ? 
And  it  is  because  of  this  inability  to  resist  herself  and  others,  we 
find  it  written  in  the  revealed  Word  of  Heaven  that  woman  is  to  be 
placed  under  the  protection  of  man.  I  hold  it  as  a  principle,  that 
he  who  gains  the  affections  of  the  wife  in  defiance  of  the  authority 
of  the  husband,  commits  as  great" a  crime  against  that  husband  as 
if  by  force  he  had  taken  her  person.  It  is,  therefore,  the  sacred 


TRIAL  OF  DANIEL  E.  SICKLES.  147 

duty  of  the  husband  to  look  to  the  affections  of  his  wife,  to  control 
them,  and,  above  all,  to  see  that  they  are  not  stolen  from  him  by 
the  insidious  practices  or  machinations  of  the  adulterer.  He  is  the 
owner  of  them,  and  bound  to  secure  them  against  the  weakness  of 
female  nature.  It  is  upon  this  principle  and  upon  this  obligation, 
the  institution  of  marriage  is  created.  Woman  is  the  weaker  ves- 
sel; man  is  the  stronger  vessel;  and  it  is  the  duty  of  the  man  to 
make  up  for  the  shortcomings  of  the  woman.  In  guarding  the 
wife's  honor,  the  husband  guards  his  children.  He  owes  it  to  them, 

to  keep  the  stigma  of  her  disgrace  from  them. 

******** 

It  is  a  well  settled  legal  principle,  that  every  man's  house  is  his 
castle — for  the  security  of  himself  and  his  family.  The  word 
"  castle "  is  a  term  of  the  law.  It  does  not  signify  that  a  man 
keeps  his  family  within  battlemented  walls — but  it  is  used  as  a 
figure  of  speech  to  denote  that  his  residence,  though  it  be  a  hut 
which  can  neither  keep  the  rain  nor  sunshine  from  penetrating  its 
roof,  is  nevertheless,  for  every  moral  and  legal  purpose,  as  much  a 
fortress  as  if  it  were  constructed  for  one.  The  thatched  roof,  the 
humblest  hut  that  rears  itself  to  the  most  limited  height  in  the  face 
of  heaven,  is  as  much  a  castle  for  the  protection  of  a  man's  wife  and 
family  as  though  it  were  a  castle  in  reality — and  whoever  enters  it, 
even  though  it  be  by  his  invitation,  in  the  guise  of  a  friend,  but  in 
reality  as  a  seducer,  is  a  trespasser  upon  that  home.  That  is  the 
principle  I  want  to  strike  home  to  your  hearts  upon  this  occasion. 
Under  such  circumstances  you  have  the  same  right  to  eject  him 
from  that  castle  that  you  would  have  had  had  he  entered  against 
your  will.  It  is  purity  of  heart  only  which  entitles  him  to  embrace 
the  privilege  you  have  accorded  to  him. 

This  brings  me  to  the  fourth  question  in  order,  which  was — as  to 
the  reason,  or  principle,  or  meaning  of  the  old  rule,  that  homicide 
committed  by  the  husband  on  discovering  his  wife  in  adultery, 
either  by  slaying  the  adulterer  or  adulteress,  is  manslaughter.  Not 
only  can  the  husband  slay  the  adulterer,  but  if  the  guilty  parties  be 
together,  he  can  pick  from  them  and  slay  either  or  both.  Now, 
the  question,  if  the  court  please,  is  this  :  Does  this  rule,  which 
made  the  killing  of  an  adulterer  manslaughter  or  a  merely  nominal 
offense,  apply  only  to  cases  where  the  guilty  parties  are  caught  in 
the  act  ?  If  so,  the  husband  will  have  to  wait  a  very  long  time 
before  he  becomes  vested  with  the  rights  which  such  a  rule  would 
give  him.  Such  a  thing  may  have  happened,  but  if  the  husband 
never  has  his  right  to  slay  the  adulterer  until  he  catches  him  in 


148  MODERN  JURY  TRIALS. 

coition  with  his  wife,  in  the  natural  course  of  things  he  will  nevei 
have  the  right  at  all. 

That  is  all  that  any  husband  can  expect — imputation  and  strong 
circumstances  leading  directly  to  the  door  of  truth;  and  if  he  is 
never  invested  with  his  right  to  kill  until  he  has  more  than  that, 
then  it  is  denied  him  altogether  ! 

Is  not  the  man  who  discovers  some  sign,  after  the  admission  of 
guilt  by  his  wife,  corroborating  her  statement,  as  much  the  victim 
of  passion  as  though  he  had  surprised  the  adulterer  in  his  guilt  ? 
Does  it  make  any  difference  how  the  knowledge  is  gained  ?  Is  the 
spectacle  more  exciting  than  the  belief?  It  is  when  suspicion 
changes  into  proof,  when  the  mind  can  no  longer  lay  hold  of  or 
reason  upon  doubts,  that  the  tumult  of  the  passions  commences, 
and  while  it  rages  it  is  vain  to  try  to  assuage  them. 

By  the  law  of  England,  it  is  treason  to  defile  the  queen  consort 
or  regent,  and  also  the  heiress  apparent,  but  not  the  queen  dowager. 
The  reason  is,  it  puts  a  spurious  heir  upon  the  government,  and  the 
crown,  in  that  way,  might  pass  into  illegitimate  hands.  We  have 
no  government  here  transmitted  by  inheritance,  unless  it  is  the 
government  of  families;  but  is  not  the  diadem  of  the  family  honor 
as  dear  and  costly  as  any  that  ever  graced  a  monarch's  brow  ? 
Where  is  the  man  who  does  not  contemplate  the  honor  of  his 
family  as  it  flows  from  father  to  son  with  the  same  reverence  and 
attachment  with  which  he  would  contemplate  the  governmental 
crown  as  it  passed  from  the  head  of  the  incumbent  to  his  succes- 
sors? You,  all  of  you,  know  the  loyalty  of  an  Englishman  to  his 
government.  Allegiance  was  never  more  strong  than  is  that  of  the 
subject  there  to  the  sovereign.  And  if  attachment  like  that  can 
grow  up  between  individuals  and  the  government  that  grinds  them 
down,  how  much  stronger  must  be  the  attachment  that  grows  up 
between  the  members  of  the  same  family  !  Let  the  same  sanctity 
that  attaches  to  the  nation's  queen  attach  to  the  queen  of  every 
family  altar.  Shall  the  palace  be  purer  or  securer  than  the  hut  ? 
Shall  one's  lawful  children  mix  or  commune  with  the  living  monu- 
ments of  his  wife's  inconstancy  ?  Shall  the  offspring  of  another 
man  divide  with  one's  lawful  children  their  patrimony  ?  Shall 
every  door  be  swung  open  to  the  adulterer  ?  As  thrones  and 
crowns  do  not  go  with  us  by  birthright,  let  the  aegis  of  the  law  ex- 
tend itself  around  every  family  castle.  Cuckold!  Who  would 
live  to  have  it  written  upon  his  back?  What  man  so  made  of  flint 
that  he  could  walk  in  the  presence  of  his  fellow  men,  and  feel  that 
some  person  was  secretly  smirking  or  smiling  at  him,  because  he 
knew,  if  he  did  not  know,  of  his  wife's  inconstancy?  What  is  the 


TRIAL  OF  DANIEL  E.  SICKLES.  149 

choice  ?  The  choice  is  for  the  injured  husband,  in  the  midst  of  his 
agony  and  despair,  to  lay  violent  hands  upon  his  own  life,  and 
leave  the  course  free  to  his  wife's  seducer,  or  to  lay  those  violent 
hands  on  the  life  of  him  who  has  justly  forfeited  it.  Remember 
that  we  were  made  in  the  image  of  the  great  Creator.  Man  was 
made  erect,  and  to  walk  erect  upon  the  face  of  the  earth,  and 
when  the  immortal  soul  was  breathed  into  his  nostrils,  he  was 
invested  with  dignity  of  character,  and  with  instincts  to  protect 
that  dignity  of  character  ;  and  in  the  same  way,  in  which  his 
instincts  tell  him  that  his  God  lives,  he  is  told  to  defend  his  dig- 
nity, even  to  the  extent  of  his  own  or  his  neighbor's  life. 

This  brings  me,  if  the  court  please,  to  the  last  consideration  in 
connection  with  this  subject,  which  constitutes  the  fifth  question  I 
proposed  to  the  court,  viz  :  what  was  the  effect  of  the  rule  which 
lowered  or  reduced  such  a  killing  to  manslaughter  ?  I  design 
showing  that  it  was  equivalent  or  tantamount  to  an  acquittal,  that 
the  rule  at  common  law,  which  made  such  an  act  manslaughter, 
was,  in  effect,  declaring  that  there  was  no  offense,  or  so  light  an 
offense  as  not  to  be  worthy  of  punishment. 

******** 

It  is  important  for  you,  gentlemen  of  the  jury,  to  know  some  of 
the  facts  of  which  he  was  aware  at  the  time  of  his  collison  with 
the  deceased.  He  knew  when  he  met  Mr.  Key,  on  the  afternoon 
in  question,  that  he  was  about  his  house  for  the  purpose  of  making 
an  assignation  with  his  wife.  He  knew  that  he  had  hired  a  house 
but  a  few  blocks  from  his  mansion,  where  he  met  his  wife.  He 
knew  that  he  had  the  aid  of  a  park,  and  a  club-house,  and  an  opera 
glass,  which  enabled  him  to  see  whether  or  not  it  was  safe  for  him 
to  approach  his  habitation.  The  thing  was  well  considered  by 
Key  !  He  hired  the  house  in  a  part  of  the  city  from  which  he 
thought  no  witnesses  could  come  against  him;  in  a  part  of  the  city 
populated  chiefly  by  blacks,  where,  from  his  legal  knowledge,  he 
knew  that  facts  seen  by  them  were  not  seen  at  all.  All  the  wea- 
pons which,  as  an  adulterer,  he  required,  he  had  about  him  on  the 
afternoon  of  this  fatal  occurrence.  He  wanted  no  Derringers  to 
accomplish  his  end.  And  although  there  is  no  proof  before  you  to 
show  that  he  was  not  armed  at  that  time,  the  evidence  to  be 
adduced  on  the  part  of  the  defense  will  be  that  he  was  a  man  who 
was  in  the  habit  of  carrying  arms.  He  was  provided,  no  doubt, 
with  all  that  was  necessary  to  protect  his  life.  At  all  events,  he 
was  furnished  with  all  the  means  serviceable  to  him  in  the  pursuit 
of  his  adulterous  intentions — his  white  handkerchief,  the  signal  of 


150  MODERN  JURY  TRIALS. 

assignation — the  adulterer's  flag — and  the  other  appliances  of  an 
adulterer's  trade. 

Mr.  Sickles  knew  that  Key  was  in  the  habit  of  carrying  his 
opera-glass.  He  knew  that  he  was  in  the  habit  of  availing  himself 
of  the  club-house  and  park,  and  that  he  had  been  frequently  seen 
about  there  for  the  purpose  of  making  an  assignation  with  his  wife. 
He  had  no  knowledge  that  he  was  coming  there  that  afternoon, 
and  he  saw  him  without  any  forewarning  whatever.  But  he  knew 
what  the  purpose  was  that  brought  him  there.  What,  then,  must 
have  been  the  condition  of  his  mind  ?  Mr.  Sickles  did  not  invite 
him  to  that  vicinity.  The  meeting  was  the  result  of  accident,  and 
when  his  eyes  rested  upon  the  destroyer  of  his  happiness,  he  asso- 
ciated him  at  once  with  the  facts  he  knew,  and  went  forward,  in  the 
transport  of  his  rage,  to  the  consummation  of  the  deadly  scene.  I 
state  these  facts  that  you  may  be  able  to  appreciate  the  point  I  am 
discussing. 

Is  it  possible  that,  under  these  circumstances,  Mr.  Sickles  could 
have  acted  in  cold  blood  ?  Was  it  possible  for  him  to  know  what 
he  did  of  the  relations  of  Mr.  Key  and  his  wife,  and  yet  look  upon 
him,  even  though  he  saw  him  accidentally,  and  preserve  his  equan- 
imity ?  If  Mr.  Sickles  was  excited,  was  it  an  instance  of  passion 
unduly  excited  ?  If  he  was  in  a  state  of  white  heat,  was  that  too 
great  a  state  of  passion  for  a  man  to  be  in  who  saw  before  him  the 
hardened,  the  unrelenting  seducer  of  his  wife  ?  Mr.  Key  did  not 
yield  to  temptation  in  an  erring  moment.  It  was  not  while  any 
sudden  fit  was  on  him,  he  deflowered  the  wife  of  his  friend  !  It 
was  a  deliberate  and  systematic  crime  from  beginning  to  end. 

Though  he  has  passed  from  the  scenes  of  the  living,  and  though 
he  may  be  entitled  to  be  kindly  remembered  in  other  things,  so  far 
as  he  forms  the  subject-matter  of  this  inquiry,  his  faults  are  to  be 
exposed  in  their  proper  hues  and  with  all  their  aggravations. 

As  to  the  amount  of  excitement  which  resides  in  that  provoca- 
tion, it  is  not  necessary  for  you  to  speculate,  because  it  has  been 
conceded  by  the  flintiest-hearted  judges  that  ever  presided  over  the 
administration  of  criminal  justice,  that  jealousy  is  the  highest  rage 
of  man,  and  adultery  the  greatest  provocation  that  can  be  given  to 
him.  I  had,  in  the  same  connection,  also  considered  the  rule 
making  the  slaying  by  the '  husband  of  his  wife's  adulterer  man 
slaughter  at  the  common  law. 

I  had  left  off  in  the  consideration  of  one  of  the  gravest  questions 
arising  in  this  case,  the  question  as  to  whether  there  could  be  any 
criminality,  when  the  mind  was  in  a  condition  which  exorcised 
from  it  all  will  or  intention.  We  understand  the  basis  of  accounta- 


TRIAL  OF  DANIEL  E.  SICKLES.  151 

bility,  divine  and  human,  to  be  the  possession  of  that  amount  of 
reason  which  enables  us  to  know  the  right  way,  and  of  that  amount 
of  reason  which  enables  us  to  select  it;  in  other  words,  in  the  lan- 
guage of  the  criminal  law,  "  intention  is  the  essence — the  soul  of 
criminality."  In  the  case  of  every  crime  there  is  a  body  and  an 
animating  principle,  precisely  as  in  nature.  Every  crime  is  divided 
into  two  parts;  first,  the  corpus  delicti,  as  it  is  called — that  is  the 
body  of  the  offense — and  it  is  a  mere  dead,  inanimate  body,  with- 
out that  exciting  principle  which  gives  it  life;  secondly,  the  inten- 
tion, or  will,  which  enters  into  it. 

Although,  in  the  present  case,  a  human  being  was  slain,  never- 
theless, we  say  the  soul  of  that  act,  that  which  could  turn  it  into  a 
crime  (if  it  could  become  a  crime  at  all),  was  never  infused  into  it; 
that  there  was  not  that  will  or  intention  on  the  part  of  the  slayer, 
at  the  time  of  the  perpetration  of  his  act,  which  rendered  him 
amenable  to  a  criminal  tribunal.  The  proposition  I  had  submitted 
on  this  point  was  this:  that  whether  the  state  of  mind  was  pro- 
duced by  disease,  or  provocation,  was  perfectly  immaterial;  the 
inquiry  for  the  jury  was,  what  was  the  state  of  mind,  and  I  submit 
to  you  that  that  is  a  proposition  founded  in  sound  reasoning.  Is  it 
material  how  a  result  is  accomplished,  so  long  as  it  is  accomplished  ? 
There  is  one  exception  to  this  rule,  and  that  is,  where  a  man  takes 
into  his  mouth,  voluntarily,  that  which  steals  away  his  brains,  the 
law  says  that  he  is  responsible  for  every  act  committed  under  its 
inflence;  for  its  maxim  is,  "nam  omne  crimen  ebrietas,  et  incendit, 
et  detegit"  drunkenness  both  inflames  and  discovers  the  crime  com- 
mitted under  its  influence.  In  this  case,  however,  there  is  no  such 
thing,  for  Mr.  Sickles  was  not  a  party  to  the  origin  of  the  provoca- 
tion, which  acted  upon  him  and  induced  him  to  the  commission  of 
his  act.  There  might  be  something  in  favor  of  the  prosecution,  if 
that  ground  could  be  occupied  by  it,  but  he  stood  entirely  clear  of 
the  conduct  of  this  adulterer,  was  in  no  way  privy  to  it,  had  never 
connived  at  it,  and  the  first  knowledge  he  gained  of  it  was  the 
moving  cause  to  the  commission  of  the  act  for  which  he  is  now 
arraigned  before  you. 

Gentlemen  of  the  jury,  I  ask  you  this:  If  the  brother  who  vol- 
untarily assumes  to  redress  the  wrongs  of  his  sister,  to  the  extent 
of  killing,  when  the  father  of  that  sister,  her  divine,  her  human 
protector  is  in  being,  for  where  the  parent  exists,  no  peremptory 
duty  is  cast  upon  the  brother  to  defend  the  sister,  unless  where  vio- 
lence is  inflicted  upon  her  in  his  presence  (or  in  similar  cases),  and 
the  same  duty  is  cast  upon  the  stranger  who  witnesses  its  infliction; 
if  the  brother  who  does  that  stands  excused  by  the  verdict  of  a  jury 


152  MODERN  JURY  TRIALS. 

from  the  consequences  of  this  act,  because  the  provocation  \\  as  too 
much  for  him,  upon  what  principle  can  a  difference  be  indulged  or 
a  distinction  drawn  as  to  a  husband  intervening  to  avenge  an  out- 
rage upon  his  marriage  relations?  These  are  all  the  authorities  to 
which  it  is  necessary  for  me,  in  the  hearing  of  the  court,  to  ask 
your  attention  upon  this  branch  of  the  point  I  am  engaged  in  con- 
sidering. 

As  to  the  third  division  of  this  subject — how  far  the  mind  of  the 
defendant  coincided  with  the  established  legal  tests  of  mental 
unsoundness  at  the  time  of  the  killing  in  question — I  shall  occupy 
your  attention  but  a  few  moments  upon  it.  You  can  answer  this 
as  men,  as  husbands,  as  fathers,  as  brothers.  We  need  no  books 
here  to  tell  you  with  what  affections  the  human  mind  is  endowed. 
It  is  a  matter  for  your  own  common  sense.  Your  own  innate  feel- 
ings will  serve  you  better,  in  reference  to  this,  than  the  citation  of 
authorities,  or  any  enlightenment  of  mine.  You  are  qualified  to 
respond  to  the  question,  as  to  what  must  have  been  the  frenzy  of 
Mr.  Sickles,  when  he  encountered  the  deceased  under  the  circum- 
stances leading  to  his  death.  There  was  no  deliberation  in  the 
meeting.  It  was  purely  accidental.  If  he  had  thrown  out  a  bait — 
if  he  had  invited  the  deceased  to  that  vicinity,  in  order  that  he 
might  go  forth  from  his  mansion,  armed,  in  the  fearful  manner 
painted  by  the  learned  counsel  for  the  Government,  and  slay  him, 
there  would  be  a  feature  in  this  case  which  might  appall  us.  There 
is  no  such  feature  here.  Mr.  Key  was  in  the  neighborhood  of  Mr. 
Sickles'  mansion,  following  the  bent  of  his  own  infamous  and 
wicked  inclinations.  The  very  ferocity  of  the  attack  upon  the 
deceased,  as  testified  to  on  the  part  of  the  prosecution — the  mur- 
derous character  which  they  have  tried  to  impart  to  it — proves 
conclusively  the  state  of  mind  which  actuated  and  prompted  the 
defendant  to  his  act.  This  is  a  speaking  fact.  He  encountered 
the  deceased  without  any  expectation  of  doing  so.  He  met  him  as 
casually  as  though  he  had  met  the  veriest  stranger;  and  the  fero- 
ciousness with  which  the  witnesses  for  the  prosecution  represent 
him  as  assailing  the  deceased,  is  indicative  of  the  impulses — the 
irresistible  impulses,  which  drove  him  on,  and  to  which  it  was 
impossible  to  oppose  any  resistance. 

Reflect,  again,  for  a  moment,  upon  the  fearful  tenantry  of  the 
human  breast.  The  emotions  are  there.  The  passions  have  their 
abode  there.  Shame,  anger  and  grief  claim  it  as  their  residence. 
How  must  they  have  been  excited  in  this  defendant,  over  the  provo- 
cation they  received  ?  Could  reason  exert  any  sway  over  them  ? 
Amid  such  a  tumult,  what  voice  could  be  heard?  To  what  tones 


TRIAL  OP  DANIEL  E.  SICKLES.  153 

could  the  ear  of  the  mind  incline  itself  ?  Where  was  the  free 
agency  of  the  defendant,  then  ?  Where  was  his  will  ?  Where,  his 
intention  ?  Who  will  call  such  a  condition  passion  ?  It  is  an  exag- 
geration of  the  feeling — a  misuse  of  the  term! 

As  one  of  his  counsel,  I  maintain  that  the  act  of  the  defendant 
was  committed  while  in  a  state  of  mind  such  as  the  circumstances 
would  naturally,  necessarily  engender,  and  the  humanity  of  every 
man  can  understand  the  meaning  and  force  of  the  remark ! 

Begging  you,  gentlemen  of  the  jury,  to  keep  in  view  these  con- 
siderations, namely:  That  the  defendant  was  in  no  way  connected 
with,  or  responsible  for,  the  conduct  of  the  deceased;  that  he 
neither  countenanced  nor  promoted  it;  that  it  was  a  direct  invasion 
of  his  most  sacred  rights;  that  it  involved,  not  merely  the  over- 
throw of  his  household,  but  the  destruction  of  his  own  self -com- 
posure and  happiness;  and  that  he  executed  judgment  upon  the 
deceased  while  almost  in  the  act  of  flaunting  the  adulterer's  signal. 
I  shall  proceed  to  give  you  a  brief  narrative  of  the  facts  of  this 
case,  and  then  commit  it  to  you,  so  far  as  my  present  duty  is  con- 
cerned. Who,  let  me  ask  you,  were  the  parties  to  this  transaction  ? 
As  I  have  said  before,  I  shall  speak  no  unkind  word  of  Mr.  Key. 
I  shall  place  the  facts  before  you,  and  leave  them  to  speak  to  you. 
He  was  a  man  of  mature  years.  He  was  a  man  about  forty  years 
of  age,  as  I  am  informed.  He  had  been  a  married  man;  and  at  the 
very  time  of  his  misconduct,  he  had  the  monuments  of  that  sacred 
relation  before  him,  daily,  to  warn  him  of  the  wickedness  of  his 
course.  He  himself  had  assumed  the  marriage  vow,  and  he  knew 
the  solemnity  of  it.  He  could  tell  himself  what  would  have  been 
his  own  feelings,  if  his  own  home  had  been  dishonored;  and  he 
could  very  well  have  conceived  how  he  would  have  acted,  if  he  had 
discovered  the  author  of  that  dishonor.  He  could  appreciate  the 
horror  of  a  wife's  disgrace! 

His  profession  was  such  as  should  have  imparted  some  gravity 
to  his  character.  There  are  some  occupations  which  do  not  inter- 
fere with  the  frivolity  of  human  nature;  but  if  there  is  any  pro- 
fession in  the  world,  short  of  the  pulpit,  which  ought  to  communi- 
cate gravity  to  human  mind,  it  is  the  profession  to  which  I  belong. 
The  very  business  of  our  profession  is  to  study  out  the  rights  of 
other  men,  and  to  observe  them;  and  therefore  a  lawyer,  above  all 
others,  before  every  tribunal,  whether  it  be  erected  in  the  arch  of 
the  heavens  above,  or  upon  the  face  of  the  earth,  is  entitled  to  the 
least  charitable  consideration,  for  such  misdeeds  as  are  wanton 
encroachments  upon  what  belongs  to  his  neighbor. 

What,  too,  was  his  position  ?    He  was  the  prosecuting  officer  for 


154  MODERN  JURY  TRIAIA 

this  district.  He  was  selected  to  conserve  the  cause  of  public 
morality  and  public  decency.  It  was  his  business  to  see  that  your 
homes  were  protected  against  seducers  and  adulterers,  and  every 
other  species  of  criminals.  Yet  he  robed  himself  in  the.  garb  of 
hypocrisy,  came  into  this  court,  and  hunted  down,  with  almost 
unparalleled  success,  the  very  worms  that  crawl  upon  the  face  of 
the  earth,  while  full-grown  men  in  crime,  such  as  he  himself  was, 
were  permitted  to  stalk  about  this  country  not  only  unpunished, 
but  not  even  admonished  or  reproved. 

If  there  ever  was  a  case  in  which  a  man,  though  tempted  by  a 
woman,  should  have  imitated  the  example  of  Joseph,  who  left  his 
.garment  in  the  hands  of  Potiphar's  wife,  this  was  one,  above  all 
others,  in  which  the  man,  rising  above  the  dominion  of  his  passion, 
should  have  left  behind  him  some  proof  which,  by  the  mendacity 
of  the  woman,  could  have  been  perverted  into  evidence  of  his 
guilt. 

Who  was  the  husband  in  this  case  ?  He  was  a  man,  as  I  under- 
stand, some  years  younger  than  Mr.  Key.  He  was  accredited  to 
your  city,  as  a  member  of  the  councils  of  the  nation.  He  came 
here  from  the  great  commercial  metropolis  of  the  continent — a  city 
upon  which  every  part  of  this  Union  looks  with  pride,  and  which, 
however  objectionable  some  of  its  features  may  be,  nevertheless 
will  be  conceded  by  every  American  heart,  to  be  the  first  city  of 
our  Union.  He  was  here  in  the  way  of  duty,  and  by  way  of  show- 
ing Mr.  Key,  and  you,  his  confidence  in  the  protection  which  was 
guaranteed  to  him  by  the  laws  of  the  district,  he  brought  within 
its  precincts  his  wife  and  child.  He  threw  them,  with  himself, 
upon  your  laws  for  protection. 

What  were  the  relations  of  Mr.  Sickles  ?  We  shall  show  you 
what  they  were.  So  far  as  Mr.  Sickles  was  concerned,  they  were 
those  of  sincere  friendship;  so  far  as  Mr.  Key  was  concerned,  they 
were  those  of  professed  or  avowed  friendship.  It  has  been  said 
by  the  Psalmist: 

"For  it  was  not  an  enemy  that  reproached  me;  then  I  could 
have  borne  it;  neither  was  it  he  that  hated  me  that  did  magnify 
himself  against  me;  then  would  I  have  hid  myself  from  him. 

"  But  it  was  thou,  a  man  mine  equal,  my  guide,  my  acquaint- 
ance. 

"  We  took  sweet  counsel  together,  and  walked  unto  the  house  of 
God  in  company." 

The  wrong  of  the  stranger  may  be  borne  with  patience,  but  the 
perfidy  of  a  friend  becomes  intolerable.  You  will  be  shown,  gen- 


TRIAL  OF  DANIEL  E.  SICKLES.  155 

tlemen,  that  Mr.  Sickles  had  interceded  to  have  Mr.  Key  appointed 
to  the  very  place  which  his  private  life  disgraced;  that  all  the 
influence  he  could  wield  to  secure  for  him  the  elevated  position  of 
prosecutor  at  the  bar  of  this  court,  was  thrown  into  the  scale  for 
the  purpose  of  enabling  him  to  attain  the  object  of  his  ambition. 
We  will  show  you  that  Mr.  Sickles  had  sent  him  private  clients, 
and  that  on  one  occasion,  when  he  was  obliged,  in  consequence  of 
a  difficulty  relative  to  the  hiring  of  a  house,  to  employ  professional 
services,  he  retained  Mr.  Key  as  his  counsel  in  opposition  to  the 
other  counsel  for  this  prosecution  (Mr.  Carlisle) ;  so  that  there  were 
not  only  friendly,  but  professional,  relations  between  them,  which 
it  ought  to  sink  any  man  to  the  lowest  depths  of  disgrace  to  think 
of  compromising. 

Mr.  Key  pretended  that  he  was  in  bad  health.  I  say  pretended, 
because,  although  he  had  not  strength  enough  to  encounter  the 
sphere  of  duty  which  was  assigned  to  him  here,  nevertheless,  he 
had  strength  enough  to  carry  out  his  designs  in  reference  to  the 
wife  of  his  neighbor.  Had  he  extended  to  this  court  the  same 
energy  which  he  exerted  in  the  prosecution  of  his  adultery,  he 
would  have  been  physically,  as  he  was  mentally,  adequate  to  dis- 
charge every  duty  which  devolved  upon  him. 

He  becomes  a  visitor  at  the  house  of  Mr.  Sickles.  Their  acquaint- 
ance, I  believe,  extends  back  some  six  years.  Mr.  Sickles  is  a  man 
in  public  life.  He  is  compelled  to  trust  to  the  purity  of  his  wife. 
He  is  compelled,  sometimes  for  considerable  periods,  to  be 
away  from  his  family  mansion,  and  to  leave  his  wife  under 
the  guardianship  of  her  own  chastity.  Mr.  Key  goes  there  in  the 
character  of  a  friend,  and  exhibits  those  attentions  which  gallantry 
is  ordinarily  supposed  to  prompt,  and  in  that  way  laid  the  founda- 
tions upon  which,  as  an  adulterer,  he  sought  to  rear  his  destructive 
fabric! 

We  will  show  you,  gentlemen,  that  as  early  as  the  twenty-sixth  of 
March,  1858,  it  was  reported,  so  as  to  be  heai'd  by  Mr.  Sickles,  that 
this  Key  was  dishonoring  him.  Mr.  Sickles  sends  for  him.  He 
stands  upon  his  honor  as  a  man.  He  denies  the  truth  of  the 
impeachment.  He  traces  the  author  from  one  to  another.  He 
sends  and  passes  notes,  and  when  he  is  unable  to  discover  the  real 
author  of  the  rumor,  he  represents  it  to  be  the  work  of  calumny. 
He  addresses  a  note  to  Mr.  Sickles,  speaking  of  the  ridiculous  and 
disgusting  calumny.  We  will  be  able  to  show  you  that  if  the  inti- 
macy with  Mrs.  Sickles  did  not  exist  at  the  time  of  that  note,  it,  at 
all  events,  commenced  a  few  days  afterwards.  To  show  you  how 
base  he  is — when  he  is  charged  with  dishonest  conduct  towards 


156  MODERN  JURY  TRIALS. 

Mr.  Sickles,  he  says  this  is  the  highest  affront  that  can  be  offered 
to  him,  and  that  whoever  asserts  it  must  meet  him  upon  the  field 
of  honor,  at  the  very  point  of  the  pistol!  He  thus  cuts  off  all  com- 
munication, on  the  part  of  the  world,  with  Mr.  Sickles,- thinking 
that  his  baseness  would,  thereby,  go  undetected;  and  that  was  the 
reason  why,  for  a  period  of  nearly  a  year — though  he  was,  no  doubt, 
almost  daily  in  the  practice  of  his  treachery  upon  his  friend — his 
friend,  until  the  development  came  upon  him,  as  I  shall  presently 
state,  never  harbored  a  thought  of  suspicion  against  him.  We 
will  show  you,  gentlemen,  that  from  this  time  until  the  twenty- 
fourth  of  February,  1859,  his  relations  to  Mr.  Sickles  appeared 
perfectly  friendly,  and  that  Mr.  Sickles  reposed  every  confidence 
in  him. 

******** 

On  the  Thursday  before  Mr.  Key's  death,  Mr.  Sickles  had 
another  dinner  party  at  his  house.  Mr.  Key  was  not  invited  to  it. 
After  dinner,  his  wife  accompanies  some  friends  who  have  been  at 
the  dinner  to  Willard's  hotel,  for  the  purpose,  as  she  says,  of  enjoy- 
ing a  hop  there.  Mr.  Sickles  goes  there  after  her.  When  he  enters 
the  room,  he  finds  Key  sitting  by  her;  but  as  soon  as  Key  sees  him 
he  abruptly  leaves  the  wife.  Nothing  but  his  own  sense  of  shame 
could  have  prompted  him  to  it !  On  returning  home,  and  opening 
his  letters,  Mr.  Sickles  finds  an  anonymous  letter  among  them, 
which  was  the  origin  of  the  discovery  of  his  wife's  inconstancy, 
and  will  be  produced  in  evidence  before  you. 

The  substance  of  that  letter  was,  that  his  wife  was  in  the  habit 
of  meeting  Mr.  Key  at  a  house  on  15th  street,  between  K  and  L — 
that  Key  had  hired  the  house  for  the  express  purpose,  and  had  as 
much  use  of  her  person  as  he  (her  husband)  had.  The  nature  of 
Mr.  Sickles  would  never  have  permitted  him  to  trust  to  an  anony- 
mous letter,  if  framed  in  the  ordinary  manner.  He  is  a  man  of 
elevated  character,  and  would  treat  an  anonymous  communication 
with  contempt.  But  there  was  a  degree  of  circumstantiality  about, 
this  letter;  it  went  into  details,  located  the  house,  and  gave  him 
such  an  inkling  of  facts  as  satisfied  him  there  was  something 
requiring  investigation.  He  institutes  one,  and  becomes  satified  of 
all  but  the  identity  of  the  person  who  visited  the  house.  It  turned 
out,  on  inquiry,  that  there  was  a  house  located  where  this  was 
described  as  being,  that  Mr.  Key  had  hired  the  house,  and  that  he 
was  in  the  habit  of  going  there  sometimes  with,  but  oftener  to 
meet,  a  female,  who  went  in  either  before  or  after  him.  The  only 
question,  then,  left  for  Mr.  Sickles  to  solve  was,  whether  the  female 
who  came  to  the  house  was  his  wife  or  some  other  person. 


TRIAL  OP  DANIEL  E.  SICKLES.  157 

On  the  following  day  (Friday),  Mr.  Sickles  commissioned  Mr. 
Wooldridge,  his  friend,  to  inquire  into  the  identity  of  the  woman 
who  accompanied  Mr.  Key  to  the  house  in  question.  We  will  show 
you  the  circumstances  under  which  he  commissioned  him  to  do 
this.  Mr.  Wooldridge  went  to  15th  street  and  arranged  with  the 
person  occupying  the  house  opposite  the  one  rented  by  Key,  for 
the  use  of  a  front  room,  on  the  next  day,  to  enable  him  to  watch 
and  see,  in  case  the  woman  came  there  on  that  day,  who  she  was. 
While  there  on  Friday,  he  understood  that  the  woman  had  last 
been  at  the  house  on  Thursday.  Having  made  the  arrangement 
for  the  use  of  the  room  on  the  next  day,  he  returns  and  informs  Mr 
Sickles  that  the  woman  was  last  seen  at  the  house  on  Thursday. 
On  Saturday  he  goes  to  the  house,  and,  from  the  room  which  he 
had  engaged,  he  watches  for  from  five  to  six  hours,  and,  not  dis- 
covering anything,  returns  to  his  boarding-house,  and  learns  that 
Mr.  McClusky,  who,  I  understand,  is  an  attendant  at  the  capitol, 
had  been  there  for  him  with  a  note,  and  while  there  Mr.  McClusky 
returned  and  delivered  to  him  a  note  from  Mr.  Sickles  telling  him 
"  to  be  exceedingly  tender  in  the  prosecution  of  his  inquiries,  for 
he  has  reason  to  believe  that  his  wife  is  innocent,  and  that  he 
wishes  her  to  emerge  from  the  suspicion  she  rested  under,  without 
the  public  becoming  possessed  of  the  imputation  which  the  anony- 
mous letter  had  cast  upon  her."  As  soon  as  Mr.  Wooldridge 
receives  the  note,  he  goes  to  the  capitol  and  there  sees  Mr.  Sickles, 
and  he  is  then  under  the  necessity  of  disabusing  his  mind  and  dis- 
appointing the  hope  he  had  indulged  as  to  the  fidelity  or  constancy 
of  his  wife.  As  soon  as  he  saw  Mr.  Sickles,  he  told  him  that  while 
at  the  house  opposite  the  house  in  question,  on  15th  street,  on  that 
Saturday,  he  had  learned  that  it  was  on  Wednesday,  and  not  on 
Thursday,  the  woman  had  last  been  there.  Of  course  Mr.  Sickles, 
having  by  inquiry  satisfied  himself  that  his  wife  was  not  at  the 
house  on  Thursday,  when  the  day  was  shifted  to  the  right  one,  lost 
all  confidence  in  her  innocence.  He  then  became  satisfied  that  it 
must  be  his  wife.  Mr.  Wooldridge  described  the  articles  of  dress 
which  the  woman  who  accompanied  Mr.  Key  wore  when  she  went 
to  the  house,  and  Mr.  Sickles  at  once  recognized  the  apparel  of  his 
wife.  Conviction  more  and  more  fastens  itself  upon  him,  and  he 
finds  the  hope  he  had  indulged  that  she  was  pure,  because  she  had  not 
been  to  the  house  in  question  on  the  Thursday  before,  a  fallacious  and 
delusive  one.  He  returns  home;  he  questions  his  wife;  he  puts  her 
guilt  to  her  in  such  a  way  as  that  she  thought  she  had  been  exposed, 
and,  under  its  pressure,  she  acknowledged  her  dishonor  and  fur- 
nished him  with  a  written  confession  of  it.  As  soon  as  this  con- 


158  MODERN  JURY  TRIALS 

feiflion  is  given  to  him,  lie  sends  for  Mr.  Woold ridge,  by  note,  and 
directs  him,  if  he  receives  it  before  ten  o'clock  that  night,  to  come 
immediately  to  his  house,  or,  at  all  events,  to  come  early  the  fol- 
lowing morning.  Mr.  Wooldridge  was  out  when  the  note  was 
sent,  spending  the  evening  on  some  jovial  occasion,  some  presenta- 
tion or  other,  and  did  not  return  to  his  boarding-house  till  near 
midnight,  and  of  course  did  not  get  the  note  in  time  to  see  Mr. 
Sickles  that  night.  On  the  following  morning,  between  ten  and 
eleven  o'clock,  he  went  to  the  house  of  Mr.  Sickles,  and  there  he 
found  him  a  perfectly  frantic,  frenzied  man.  Mr.  Sickles  comes  in, 
throws  down  the  written  confession  of  his  wife,  tells  him  that  the 
whole  story  has  been  acknowledged,  and  Mr.  Wooldridge,  with 
his  own  eyes,  reads  her  guilt  as  it  is  embodied  in  her  statement. 
We  will  be  able  to  show  you  what  the  anguish  and  grief  of  Mr. 
Sickles  were  at  that  time.  The  day  before  he  was  unwilling  to 
relinquish  the  idea  that  his  wife  was  pure,  but  the  proof  thickened 
too  strong  against  her,  and  he  was  compelled  to  abandon  the  hope 
of  her  innocence  with  reluctance.  How  must  his  anguish  have 
been  heightened  when  he  discovered  that  her  guilt  was  an 
undoubted  fact ! 

If  Mr.  Sickles  was  not  perfectly  demented  at  the  first  knowledge 
of  his  shame,  how  must  his  frenzy  have  been  heightened  as  he  had 
to  impart  the  knowledge  of  that  shame  to  his  friends,  one  by  one, 
as  they  entered  his  mansion?  Grief,  when  its  cause  is  shame, 
becomes  tolerable  to  a  certain  extent  when  we  can  keep  our  shame 
to  ourselves.  Is  it  not  the  tendency  of  human  nature  to  bury  such 
secrets  in  one's  own  bosom?  There  are  griefs  which  we  delight  to 
impart  to  others.  When  the  icy  hand  of  death  has  closed  in  its 
sleep  the  eyes  of  a  relative  or  friend,  we  delight  in  imparting  our 
anguish  to  those  who  come  with  warm  hearts  and  cordial  hands  to 
administer  to  us  the  balm  of  consolation.  But  when  the  cause  of 
grief  is  Shame,  Man  hides  his  diminished  head,  for  he  feels  that 
it  is  diminished  by  the  disgrace  which  afflicts  him.  Gentlemen  of 
the  jury,  I  ask  you  what  must  have  been  the  anguish  of  Mr. 
Sickles  at  this  time  ?  He  had  not  only  the  first  knowledge  of  his 
wife's  infidelity  to  contend  with,  but,  as  his  friends  presented  them- 
selves, one  by  one,  he  was  forced  to  tell  them,  as  an  explanation,  of 
his  condition,  of  her  dishonor  and  her  downfall.  The  scene  which 
took  place  while  Mr.  Butterworth  was  at  his  house  will  be  described 
by  Mr.  Wooldridge. 

Some  considerable  time  before  Mr.  Butterworth  came  there,  the 
colored  man  servant,  on  raising  the  shade  of  the  front  window  o" 
Mr.  Sickles'  library,  saw  Mr.  Key,  and  remarked  it  to  Mr.  Wool 


TKIAL  OP  DANIEL  E.  SICKLES.  159 

dridge,  who  looked,  and  saw  him  come  through  the  gate  of  the 
park  and  across  the  street,  in  which  Mr.  Sickles'  house  was,  and  go 
up  past  the  President's  mansion.  Key,  no  douht,  was  perfectly 
desperate  on  this  occasion.  He  had  not  seen  Mrs.  Sickles  since 
Thursday.  He  had  not  been  able  to  get  signals  to  or  from  her. 
All  communications  had  been  cut  off.  He  had  hired  his  house  for 
nothing.  Days  had  gone  by  since  he  had  rifled  the  casket  of  his 
friend's  affections.  Like  all  libertines,  he  was  "  eager  for  the  fray" 
of  his  passions.  He  was  carried  headlong  by  them,  and  was 
shamelessly,  "  in  the  soft  gush  of  the  Sabbath  sunlight,"  watching 
the  castle  of  his  neighbor.  You  can  account  for  Key's  conduct  on 
that  memorable  Sabbath  in  no  other  way. 

It  was  between  twelve  and  one  o'clock  in  the  day,  when  Mr. 
Butterworth  first  came  to  Mr.  Sickles'  house.  After  he  had  been 
there  some  time,  passing  through  the  harrowing  scene  that  was 
enacted  on  his  first  meeting  with  his  wronged  and  injured  friend, 
he  left,  saying  that  he  was  going  to  Willard's  Hotel.  When  he 
had  been  gone  about  ten  minutes,  Mr.  Wooldridge  looked  at  his 
watch,  and  it  was  twenty-five  minutes  to  two  o'clock.  Almost 
immediately  after  this,  as  he  (Wooldridge)  sat  at  the  front  library 
window,  he  saw  Key  passing  the  house  on  the  opposite  side  of  the 
street,  going  toward  Pennsylvania  avenue.  He  was  with  a  lady 
and  gentleman,  walking  on  the  outside  of  them,  next  the  curb- 
stone. As  he  passed,  he  took  out  a  white  pocket-handkerchief,  and 
waved  it  towards  Mr.  Sickles'  house,  looking  at  the  same  time 
toward  the  upper  part  of  the  house.  When  he  got  to  the  avenue, 
he  shook  hands  with  the  gentleman,  and  entered  the  park,  and  the 
trees  hid  him  from  Mr.  Wooldridge's  view.  The  gentleman  and 
the  lady  went  down  the  avenue,  on  the  outside  of  the  park.  Mr. 
Butterworth  returned  in  a  few  moments,  and  as  he  entered,  Mr. 
Wooldridge  told  him  what  he  had  seen — that  Key  had  just  passed. 
"  You  did  not  tell  Mr.  Sickles  ? "  said  Mr.  Butterworth.  "  No," 
said  Mr.  Wooldridge,  "  I  could  not  find  it  in  my  heart  to  do  so." 
They  were  resolved  to  keep  it  from  Mr.  Sickles  if  they  could,  that 
Key  was  prowling  on  the  outside  of  his  mansion,  with  dishonorable 
intentions  toward  him. 

Instantly  Mr.  Sickles  came  down  stairs.  I  do  not  fill  up  the 
interval  between  Mr.  Wooldridge's  coming  there  on  that  day,  and 
this  point,  with  a  minute  statement  of  what  Mr.  Sickles  said  or 
did.  It  would  occupy  too  much  time.  At  this  point  he  rushed 
down  stairs  in  a  perfect  frenzy.  He  had  seen  Key  pass  with  the 
lady  and  gentleman,  and  wave  his  handkerchief.  We  have  under- 
stood that  the  prosecution  mean  to  try  to  show  that  the  handker- 


160  MODERN  JURY  TRIALS 

chief  wap  waved  at  a  dog,  which,  at  that  moment,  happened  to 
cross  Key's  path.  He  must  have  imagined  sometimes  that  he  saw 
dogs,  for,  on  some  occasions,  we  will  prove,  he  waved  it  when  there 
was  no  other  object  in  view  but  Mrs.  Sickles  or  her  house,  to  wave 
it  at.  It  was,  however,  his  signal  for  an  assignation.  Mr.  Sickles 
now  knew  that  his  wife  had  been  dishonored  by  this  man;  and, 
also,  the  meaning  of  the  wave  of  the  handkerchief.  He  was 
frenzied.  We  will  show  you  that  so  close  and  compact  were  the 
occurrences  at  this  time  that  the  inmates  of  the  house  did  not  know, 
until  they  heard  that  Key  had  been  shot,  that  Mr.  Sickles  was  out- 
side of  the  house. 

Mr.  Butterworth  left  the  house  again.  Mr.  Wooldridge  saw  him 
go  down  the  steps  of  the  stoop.  He  was  alone.  Mr.  Sickles  was 
not  with  him.  Mr.  Wooldridge  went  to  the  drawing  room,  and  got 
the  stereoscope  that  was  there — brought  it  to  the  front  library  win- 
dow, and  as  he  was  arranging  it  on  the  window-sill,  he  saw  persons 
running  to  the  farther  corner  of  the  park.  He  did  not  dream  that 
Mr.  Sickles  was  outside  of  the  house,  until  a  colored  girl  came  to 
the  house  and  announced  that  Key  had  met  his  death.  Reflect, 
gentlemen,  for  an  instant  upon  the  condition  of  Mr.  Sickles'  mind 
at  this  juncture. 

The  night  before  his  wife  had  acknowledged  her  guilt;  he  had 
passed  the  night  without  sleep;  he  had  sighed  and  sobbed  it  away; 
as  his  friends  came  in  he  was  compelled  to  unbosom  to  them  the 
story  of  his  wife's  dishonor;  to  crown  all,  he  saw  the  adulterer,  his 
flag  floating,  as  it  were,  for  the  purpose  of  inviting  or  enticing  his 
wife  from  her  home.  It  is  for  you  to  say,  from  these  facts,  what 
must  have  been  the  condition  of  his  mind  at  the  time  he  went  into 
the  scene  that  resulted  in  the  death  of  his  wrong-doer. 

After  specifying  a  few  other  facts,  I  have  done.  Why  was  Mr. 
Key  constantly  in  the  vicinity  of  Mr.  Sickles'  house  ?  We  will 
show  you  that  he  lived  in  another  part  of  your  city,  a  very  consid- 
erable distance  from  it.  Yet  he  was  in  the  habit  of  riding  by  it 
on  horseback,  at  all  hours,  and  of  showing  himself  off,  in  every 
way  he  could,  to  the  greatest  advantage.  In  his  intercourse  with 
Mrs.  Sickles,  too,  he  resorted  to  and  pi-actised  all  the  blandishments 
which  adulterers  study  and  cultivate,  to  reach  the  target  they  have 
set  before  them.  How  did  he  make  his  assignations  ?  If  he 
encountered  her  in  the  President's  mansion,  he  made  them  there. 
If  in  the  mansion  of  some  senator,  he  made  them  there.  He  tainted, 
with  his  vile  appointments,  the  atmosphere  which  your  wives  and 
daughters — the  virtuous  females  of  this  district — were  obliged  to 
breathe.  The  very  air  about  was  laden  with  them.  He  followed 


TRIAL  OP  DANIEL  E.  SICKLES.  161 

his  object  wherever  she  went.  She  could  hardly  get  more  than  a 
hundred  feet  from  her  house,  before  he  was,  unexpectedly,  by  her 
side.  If  she  walked,  he  was  on  foot.  If  she  was  riding  in  a  car- 
riage, it  was  stopped,  and  he  got  in,  and  rode  with  her  for  two  or 
three  hours;  and  the  directions  to  the  driver  were,  that  it  must  be 
driven  through  the  back  streets.  He  became  a  subject  of  kitchen 
comment.  He  was  called  by  the  servants  "  Disgrace."  That  was 
the  name  bestowed  upon  him  by  the  kitchen  department  of  Mr. 
Sickles'  house.  The  district  attorney  of  the  county  of  Washington 
had  become  a  by-word  and  a  reproach  in  the  kitchen  of  one  of  the 
houses  in  the  district;  and  as  often  as  he  entered  the  house,  or  was 
Been  approaching  it,  the  remark  was  made,  "here  comes  Disgrace." 
*  *  *  Even  the  servants  in  the  house  felt  the  pressure 
of  his  infamous  intentions  to  the  defendant's  wife. 

We  will  show  you,  gentlemen,  that  between  the  twenty-fifth  of 
January  and  the  twenty-fifth  of  February  last,  Mrs.  Sickles  and 
the  deceased  were  seen  to  enter  the  house  on  Fifteenth  street  from 
six  to  eight  times — sometimes  by  the  front  door  and  sometimes  by 
the  rear  door,  reached  through  an  alley  way  in  the  rear.  We  will 
show  you  that,  on  one  occasion,  about  two  weeks  before  his  death, 
they  were  seen  walking  together  on  Sixteenth  street,  in  the  rear 
of  this  house,  when,  owing  to  the  mud,  the  walking  was  not  fit 
for  females — at  least  in  that  section  of  your  city.  We  will  show 
you  that,  on  or  about  the  sixteenth  of  February  last,  the  deceased 
was  spoken  to  on  Fifteenth  street,  between  L  and  M,  while  walk- 
ing with  Mrs.  Sickles,  and  that  he  was  whirling  a  night-key  in  his 
hand  at  the  time.  That  they  were  plainly  intending  to  enter  this 
house,  and  were  watching  for  a  chance  to  enter  it  unobserved: 
That  they  concealed  themselves  some  time  behind  a  house  on  the 
corner  of  Fifteenth  street  and  M.  That  they  were  then  followed 
to  the  corner  of  L  street,  through  L  to  Sixteenth  street,  through 
Sixteenth  street  to  K,  through  K  to  Fifteenth  street,  and  then  to 
M.  That  the  walking  was  very  muddy,  and  that  the  streets  were 
crowded  with  persons  looking  at  them;  for,  while  they  thought 
they  were  unobserved,  they  were  the  "observed  of  all  observers." 
We  will  show  you  that  on  or  about  the  twenty-third  of  February 
last,  they  were  at  the  drug  store  together,  corner  of  Vermont  ave- 
nue and  K  street,  and  that  they  left  there  together,  and  disap- 
peared so  as  to  leave  no  doubt  that  they  entered  the  house  in  ques- 
tion. This  was  between  three  and  five  o'clock  in  the  afternoon. 
We  will  show  you  that  the  shawl  the  deceased  wore  on  that  aftei 
noon  was  found  in  this  house,  after  his  death,  and  identified. 

Whenever  a  question,  appealing  to  similar  feelings  of  morality 
11 


162  MODERN  JURY  TRIAIA 

has  been  put  to  other  juries,  they  have  not  sought  to  evade  the 
responsibility  of  answering  it.  They  were  proud  of  the  glory  of 
being  permitted  to  do  so,  and  fearlessly  and  promptly  have  they 
given  it  a  response.  Less  than  the  imitation  of  their  example,  on 
your  part,  would  be  a  violation  of  your  duty — do  I  go  too  far  when 
I  say,  a  disregard  of  your  oaths?  Mercy  is  your  attribute,  as 
much  as  it  is  that  of  the  Executive.  It  should  temper  all  your 
deliberations. 

Lord  Erskine  relates,  in  his  celebrated  opening  for  the  defense, 
on  the  trial  of  Hadfield:  It  was  the  case  of  a  woman  who  was 
tried  in  Essex  for  the  murder  of  a  Mr.  Errington.  He  had  seduced 
her,  lived  with  her,  and  then  turned  her  off  for  another  woman, 
whom  he  had  married,  or  (as  Erskine  said),  "taken  her  under  his 
protection."  She  went  deliberately  to  his  house,  and  shot  her 
wrong-doer.  She  was  goaded  to  her  act  by  a  sense  of  injury;  and, 
after  her  acquittal,  she  became  absolutely  insane.  She  was  not 
insane  when  acquitted;  and  Lord  Erskine  rather  mourned  over  her 
acquittal,  taking  place  as  it  did,  for  it  conflicted  with  his  favorite 
idea  of  insanity  from  delusion,  a  view  of  which  you  have  already 
had.  He  advocated  the  principle  that  real  wrongs  produced  violent 
resentments;  imaginary  ones,  insanity.  The  jury,  in  the  case  of 
this  unfortunate  woman,  read  from,  and  practised  upon,  the  Book 
of  Human  Nature.  They  spurned  all  fine-drawn  theories,  looked 
to  the  impulses  of  the  human  heart,  and  held,  that  with  such  a  pro- 
vocation as  she  had,  desperation  did  not  exhibit  itself  in  a  criminal 
form.  This  was  the  voice  of  an  English  jury. 

In  the  year  1843,  Singleton  Mercer  was  tried  in  the  State  of  New 
•Jersey,  on  a  charge  of  murder,  in  killing  a  young  man  who  had 
forcibly  deflowered  his  sister.  He  had  been  some  forty  hours 
under  the  influence  of  the  feeling,  which  prompted  him  to  take  the 
life  of  the  deceased.  The  deceased  and  a  friend,  in  a  close  car- 
riage, got  on  board  the  ferry  boat  to  cross  from  Philadelphia  into 
the  State  of  New  Jersey.  As  the  boat  was  just  nearing  the  New 
Jersey  shore,  the  friend  of  the  deceased,  who  had  left  him  alone  in 
the  carriage,  hearing  several  pistol  reports  in  its  direction,  went  to 
the  carriage  to  see  what  it  meant.  When  he  arrived  there,  he 
found  the  deceased  in  a  dying  state.  Mercer  was  arrested  on  the 
boat;  did  not  deny  the  deed,  and  manifested  a  perfect  resignation 
to  his  fate.  He  was  tried  in  a  State  which  prides  itself  upon  the 
severity  of  its  justice,  and  yet  an  honest  jury  acquitted  him  of  all 
criminality. 

In  the  year  1844,  Amelia  Norman  was  tried  in  the  court  of  Gen- 
eral Sessions,  at  the  city  of  New  York,  on  a  charge  of  assault  and 


TRIAL  OF  DANIEL  E.  SICKLES.  165 

battery  with  intent  to  kill.  It  appeared  from  the  testimony,  that 
she  had  been  seduced  by  the  prosecutor  under  circumstances  of 
great  cruelty;  and  that  after  serving  him  in  the  capacity  of  mis 
tress,  until  he  was  sated  with  her  charms,  she  was  finally  abandoned 
by  him.  She  tried  to  persuade  him  to  do  something  for  her.  Her 
health  had  been  much  impaired  during  her  association  with  him, 
and  she  requested  a  little,  to  stand  between  her  and  want.  He 
remained  obdurate.  She  became  frantic;  furnished  herself  with  a 
dirk  knife,  went  to  his  hotel,  in  the  great  thoroughfare  of  our  city, 
saw  him  in  the  broad  daylight  in  the  act  of  entering  it,  once  more 
besought  his  aid,  was  repulsed  by  him,  and,  in  her  agony,  stabbed 
him,  and  well  nigh  deprived  him  of  his  life.  She  was  taken  into 
custody  on  the  spot.  Her  situation  and  her  wrongs  came  to  the 
knowledge  of  a  distinguished  authoress,  whose  sympathies  were 
enlisted  for  her.  This  lady  took  her  under  her  protection,  minis- 
tered to  her  during  her  imprisonment,  and  employed  counsel  to 
defend  her.  That  counsel  was  my  own  brother,  who  now  is  among 
the  dead.  When  he  ascertained  the  circumstances  of  the  case,  he 
returned  his  fee,  and  refused  to  serve  under  any  other  employment 
than  that  growing  out  of  his  compassion  for  an  injured  woman. 
Her  trial  came  around;  it  lasted  several  days,  and  resulted  in  her 
acquittal.  So  great  was  the  public  interest  in  her,  that  on  the 
night  the  verdict  was  rendered,  the  court-house  was  besieged  by 
thousands  of  our  citizens,  and  when  the  result  was  announced,  the 
welkin  rang  with  the  plaudits  of  an  excited  populace  ! 

Gentlemen  of  the  jury,  how  instructively  do  these  cases  come 
home  to  you.  The  rejected  mistress — the  contemned  father — the 
disgraced  brother — have  been  received  into  the  merciful  keeping  of 
discerning  juries.  In  matters  of  natural  right,  the  intelligence  of 
the  whole  world  is  in  unison.  What  an  English  jury  commenced, 
American  juries  have  not  refused  to  imitate  or  extend.  Shall  it 
stop  with  the  records  of  the  past?  Or  shall  the  husband,  whose 
hopes  have  been  broken,  like  the  tender  flowers  (as  it  were)  upon 
their  stocks,  be  placed  behind  the  same  shield  which  has  protected 
other  defenders  of  our  dearest  rights  ?  Even  in  your  own  district 
has  been  planted  the  seed,  of  whose  growth  we  seek  to  reap  the 
harvest.  The  honor  of  initiating  in  this  locality  the  doctrine  of 
natural  justice,  under  proper  qualifications,  has  not  been  reserved 
for  you.  It  has  already  taken  root  here.  You  can  follow  the 
example  which  has  been  set  you.  You  can  apply  it  to  a  new  wrong. 
You  can  announce  that  a  husband's  feelings  and  a  husband's  hap- 
piness must  not  be  made  light  of.  My  client,  it  is  true,  has  not 
aimed  at  being  a  public  champion;  but  his  doom  cannot  be  fixed 


164  MODERN  JURY  TRIALS. 

without  affecting,  more  or  less,  by  the  precedent  you  establish,  the 
great  moral  interests  of  society. 

Will  you  or  not  give  in  your  adherence  to  the  examples  which 
have  been  rehearsed  to  you  ?  You  have  your  own  immediate  citi- 
zens, and  the  citizens  of  other  States,  where  justice  is  not  sold,  and 
where  it  cannot  be  bought,  putting  the  redemption  of  a  juror's 
oath  upon  the  principles  which,  in  one  aspect  of  it,  constitute  the 
pillar  of  this  defence.  Will  you  renounce  your  allegiance  to  those 
principles  ?  Will  you  refuse  to  yield  yourselves  to  them  ?  Or 
will  you  rather  follow  in  the  wake  of  such  precedents,  and  render 
that  judgment  which  will  accord  with  perfect  justice,  and,  at  the 
game  time,  be  consistent  with  the  adulterer's  offense. 

Gentlemen  of  the  jury,  shall  the  abominable  doctrine  go  forth 
from  this  court  that  pecuniary  compensation  is  the  only  mode  of 
stanching  the  bleeding  wounds  of  a  husband  ?  What  is  the  effect 
of  that  doctrine  ?  It  tells  every  man  that  if  he  will  pay  the  price 
which  a  jury  may  set  upon  his  seduction  or  his  adultery,  he  can 
enter  any  house  he  pleases  and  rifle  it  of  its  purest  contents.  Is 
that  to  be  the  doctrine  of  your  district  ?  Are  we  to  have  a  mere 
list  of  rates,  or  a  mere  tariff  of  charges  ?  Is  the  lower  house  of 
infamy  to  fix  one,  and  the  higher  house  of  infamy  to  fix  another  ? 
Shall  an  American  jury  say  to  the  seducer  or  adulterer  what  he 
shall  pay  for  his  crimes.  The  very  moment  you  act  upon  that  prin- 
ciple you  tell  every  libertine  he  may  enter  any  house  in  your  dis- 
trict, if  he  is  only  ready  to  foot  the  bill  which  shall  be  presented 
by  an  American  jury,  and  stand  clear  of  all  human  or  divine 
accountability.  In  God's  name  repudiate  that  principle  from  your 
verdict.  You  sit,  where  it  is  your  inestimable  privilege  to  sit, 
under  the  immediate  protection  of  that  fire  which  burns  upon  the 
great  Altar  at  which  all  the  other  torches  of  our  government  are 
lighted.  You  are  here,  at  the  seat  of  our  Federal  Government.  You 
are  overshadowed  by  the  illustrious  name  of  Washington.  Let  its 
recollection  inspire  you  with  fitting  and  becoming  thoughts — and 
be  reluctant — be  loath  to  incorporate  into  your  verdict  a  principle 
which — if  it  is  the  one  upon  which  you  act — will  have  a  more 
demoralizing  public  effect  than  any  other  that  could  be  sustained 
by  an  intelligent  jury  J 

Acquitted,  amid  immense  applause. 


TBIAL  BY  JURY.  165 

TEIAL  BY  JUKY. 

Addxea  at  Michigan  Law  University,  Ann  Arbor,  March,  1875. 
BY  HON.  CHAS.  S.  MAY. 

The  frequent  demands  of  the  press  for  a  change  or  abolition  of 
the  jury  system,  and  the  unfounded  attacks  on  "ignorant"  juries> 
may  be  better  comprehended  after  a  half-hour's  study  of  the  ques- 
tion. The  elaborate  remarks  of  Chief  Justice  Ryan,  in  another 
chapter,  and  the  exhaustive  review  of  the  subject  herewith  given, 
are  alike  instructive  and  furnish  excellent  reading.  We  have  a 
right  to  look  for  something  more  than  common  authority  in  an 
address  to  law  students.  The  high  character  of  both  orators  on 
this  subject,  their  eminence  and  learning,  entitle  their  researches  to 
a  most  careful  consideration.  The  aim  of  a  lawyer  is  to  get  wis- 
dom. The  foundation  of  oratory  is  wisdom.  Here,  then,  is  a 
clear  fountain  from  which  to  draw  condensed  information  on  trials 
by  jury. 

Mr.  MAT  said: 

I  shall  use  the  hour  which  custom  gives  me  on  this  occasion  in 
speaking  to  you  of  one  of  the  great  institutions  of  English  justice 
and  the  common  law;  an  institution  of  high  concern  to  the  State 
and  all  its  citizens;  of  supreme  and  practical  interest  to  every  law- 
yer— "  The  trial  by  jury." 

It  is  a  theme  of  most  ample  dimensions,  and  I  shall  not  under- 
take to  give  all  its  history  or  all  its  learning.  In  the  limits  of  such 
an  address  as  this,  I  shall  only  take  a  few  views  of  the  subject,  and 
these  chiefly  of  a  practical  character.  About  to  enter,  as  these 
young  men  are,  upon  the  practice  of  the  law,  I  can  think  of  no  topic 
more  fruitful  in  suggestions  to  me,  or  likely  to  be  of  more  interest 
and  profit  to  them. 

ORIGIN  AND  HISTOBY  OF  TRIAL  BY  JURY. 

The  trial  by  jury  is  Anglo-Saxon  in  its  origin;  a  part  of  Anglo- 
Saxon  jurisprudence.  Greece  did  not  know  it,  nor  Rome.  The 
Grecian  dicasts,  the  Roman  judices,  the  Saxon  compurgators — 
these  may  have  suggested  and  helped  to  form  it,  but  each  essen- 
tially differed  from  it  as  we  know  it  to-day.  For  the  institution  in 
its  present  form  we  go  back  in  English  history  to  the  reign  of 
Henry  II.,  that  same  sagacious,  far-seeing  and  intrepid  monarch 


166  MODERN  JURY  TRIALS. 

who  waged  such  itout  and  unyielding  battle  with  his  powerful  and 
ungrateful  subject,  Thomas  a  Becket,  for  the  supremacy  of  the 
civil  over  the  ecclesiastical  power.  In  the  long  line  of  English  sov- 
ereigns, none  has  done  a  greater  service  to  his  countrymen  and  his 
race  than  this  statesman  king,  who  put  the  church  below  the  state 
and  incorporated  into  English  jurisprudence  the  trial  by  jury  in 
the  place  of  the  senseless  and  barbarous  trials  by  duel  and  by  wager 
of  battle. 

Since  the  Grand  Assize  of  1176,  a  period  of  almost  seven  hun- 
dred years,  trial  by  jury  has  been  one  of  the  sacred  muniments  of 
English  liberty.  While  it  was  yet  in  its  infancy  the  sturdy  barons 
at  Runnymede  took  care  to  make  it  a  part  of  the  Great  Charter 
which  they  wrung  from  the  faithless  and  treacherous  John,  the  undu- 
tif ul  and  degenerate  son  of  its  immoral  founder.  And  since  Jfagna 
Charta,  in  every  struggle  of  the  British  people  against  the  encroach- 
ments of  the  crown,  in  every  popular  upheaval  or  revolution — in 
every  advance  towards  a  larger  and  broader  liberty,  the  recognition 
and  maintenance  of  this  institution  has  ever  been  stoutly  insisted 
upon,  so  that  to-day  it  would  be  easier  to  uproot  the  foundation  of 
the  British  throne  itself  than  to  tear  this  venerated  landmark  from 
the  British  constitution  or  the  affections  of  the  British  people. 
The  revolution  which  dissolved  our  political  allegiance  to  the  Brit- 
ish crown  did  not  deprive  us  of  our  inheritance  of  English  liberty, 
and  so  trial  by  jury  descended  to  us  on  the  broad  stream  of  the 
common  law.  We  share  it  now  with  every  English  speaking  peo- 
ple. It  is  not  only  held  in  traditional,  popular  reverence,  but  it  is 
solemnly  incorporated  as  an  inviolable  right  into  the  constitution 
of  the  United  States,  as  well  as  the  constitution  of  most  of  the 
States  of  the  Union. 

WHAT  IT  18 ITS  MISSION  TO  FIND  THE  FACTS. 

What,  then,  is  this  trial  by  jury  which  is  thus  highly  prized  and 
sacredly  preserved  by  the  foremost  race  and  the  two  leading  nations 
of  the  world?  It  is  an  answer  to  this  question,  in  general  and  pop- 
ular terms  to  say  that  it  is  an  institution  of  English  and  American 
jurisprudence  designed  to  assist  in  arriving  at  the  truth  in  private 
disputes  in  relation  to  property  and  personal  rights,  and  in  cases 
between  the  State  and  the  individual  for  the  violation  of  public  law. 
But  it  can  only  approximate  to  this  end.  Every  form  of  trial 
known  to  the  law  is  but  an  approximation  to,  a  struggle  and 
endeavor  after,  the  truth  and  justice  of  the  case.  Only  with  God 
and  in  the  realm  of  exact  science,  working  through  fixed  laws, 
can  absolute  and  certain  truth  be  reached.  For  the  rest,  and  in  all 


TRIAL  BY  JURY.  167 

the  vast  domain  of  moral  and  legal  truth  we  must  feel  after  and 
attain  to  that  which  is  true  and  just  by  such  aids  and  lights  as  God 
has  given  us  in  the  reason  and  conscience  of  men. 

In  our  administration  of  justice  it  is  the  province  of  a  jury,  a 
trial  jury,  of  which  I  am  speaking,  to  find  the  facts.  This  is  a  clear 
and  single  process,  and  measures  their  duty  and  responsibility.  But 
every  case,  of  course,  involves  more  than  the  facts.  The  law  of  the 
case  is  involved  also — that  which  gives  to  the  facts  all  their  signifi- 
cance and  consequence  as  a  basis  for  the  claim  of  plaintiff  or  defend- 
ant. The  questions  of  law  may  be  many  or  few,  but  for  these  the 
jury  have  no  responsibility.  They  are  to  take  the  law  as  given  by 
the  court,  nor  are  they  to  ask  any  questions  as  to  its  abstract  moral 
justice,  but  simply  to  find  their  verdict  under  it.  So  it  will  be  seen 
that  the  work  of  a  jury,  though  of  controlling  importance  in  a  trial, 
is  not  the  whole  of  a  trial,  but  rather  an  incident  of  it.  The  entire 
work  to  be  done,  the  full  problem  to  be  solved,  is  one  of  a  dual 
nature,  of  mingled  law  and  fact,  and  a  trial  by  jury  in  a  court  of 
law  is  a  carefully  adjusted  piece  of  judicial  mechanism,  wheel 
within  wheel,  the  most  perfect  and  the  most  complete  which  human 
wisdom  can  devise. 

THE   JURY   SYSTEM   DEFENDED JURY   BETTER  THAN  JUDGE  EVEN  IN 

CIVIL  CAUSES. 

Does  it  need  that  I  should  defend  at  this  late  day,  an  institu- 
tion thus  venerable  in  years  and  hallowed  by  popular  affection  ? 
Certainly  it  would  seem  that  I  ought  not  to  be  called  upon  to  do 
this,  and  I  shall  not,  at  any  great  length;  but  I  do  not  forget  that 
the  men  of  this  generation,  wiser  as  they  unquestionably  are  in 
many  things  than  their  fathers  before  them,  have  begun  to  question 
institutions  which  have  stood  for  ages,  and  that  the  jury  system  has 
not  escaped  attack.  To  some  restless  innovators  the  mere  fact  that 
it  is  old  is  an  argument  against  it.  But  every  considerate  and 
thoughtful  man  will,  I  think,  hesitate  before  condemning  an  insti- 
tution which  has  been  in  continued  daily  operation  for  more  than 
twenty  generations  of  men;  which  has  become  intertwined  with 
the  history  and  traditions  of  his  country  and  his  race,  and  whose 
germs  are  found  away  back  in  the  earliest  civilizations.  Progress, 
reform,  judicial  reform — these  are  good  and  admirable  things,  but 
we  should  take  care  to  know  what  we  do  in  their  name.  John  Ran- 
dolph once  said,  in  Congress,  that  "change  is  not  reform."  and 
adding  to  his  words,  I  may  say,  with  still  greater  truth,  that 
destruction  is  not  reform.  To  abolish  the  trial  by  jury,  to  sweep 
out  of  use  and  out  of  existence  with  one  blow  the  jury  system, 


168  MODERN  JURY  TRIALS. 

would  be  &  terribly  destructive  and  radical  measure,  a  direct 
impeachment  of  the  wisdom  of  the  past  and  a  bold  and  hazardous 
experiment  upon  the  future. 

Happily,  there  is  no  great  danger  that  this  will  ever -be  done. 
For  the  jury  system  finds  its  justification  in  the  facts  of  human 
nature,  which  is  essentially  the  same  in  all  ages;  in  its  practical 
utility  and  convenience,  and  in  its  close  and  inseparable  relations  to 
civil  liberty.  I  say,  in  its  practical  utility,  and  here  I  touch  what  is 
regarded  as  the  chief  and  strongest  point  made  against  it.  Mauy 
who  would  retain  it  in  criminal  cases  and  for  its  possible  service  in 
some  great  public  crisis,  nevertheless  oppose  it  in  civil  causes  and  in 
the  common  every  day  business  of  the  courts.  While  agreeing 
with  them  fully  in  the  reservations  which  they  make  in  the  greater 
things,  I  also  believe  that  it  is  good  and  useful  in  the  smaller  things 
as  well;  in  civil  as  well  as  criminal  cases,  in  ordinary  as  well  as 
extraordinary  times. 

First,  I  believe  that  a  jury  is  always  the  best  and  fittest  tribunal 
to  find  the  facts  of  a  case.  I  hold  this  to  be  true  in  the  very  nature 
of  things.  I  know  the  argument  that  is  used  upon  this  point,  and 
what  is  said  about  unlettered  juries,  about  difficult  mental  pro- 
cesses, and  about  the  trained  and  disciplined  mind  of  the  judge. 
But  here  I  believe  is  the  better  test.  The  facts  to  be  found  in  a 
trial  in  the  courts  are  generally  the  facts  of  common  life.  Tin- 
deductions  and  conclusions  to  be  drawn  from  these  facts,  in  ni in- 
cases out  of  ten,  are  the  deductions  and  conclusions  of  ordinary 
human  experience.  These  do  not  so  much  require  learning  and 
logic  as  practical  common  sense,  knowledge  of  human  nature  as 
seen  in  men  and  not  in  books,  and  intuitive  perception  of  right  and 
wrong — qualities  oftener  found  combined,  I  think,  in  the  jury  box 
than  upon  the  bench. 

It  will  not  do  to  say,  that  because  the  judge  is  generally  the 
superior  in  natural  endowments  of  the  average  juror  and  ordinarily 
is  his  better  in  mental  training  and  acquirement,  that,  therefore,  he 
will  the  more  surely  and  certainly  draw  from  a  mass  of  tangled 
facts  the  right  and  justice  of  the  case.  For  facts  cannot  be  dealt 
with  like  principles  or  arbitrary  scientific  rules,  and  right  and  jus- 
tice are  not  always  to  be  arrived  at  like  mathematical  result*. 
Often  the  very  learning  and  discipline  of  the  judge  may  have 
unfitted  him  for  this  work  by  educating  him  away  from  the  people. 
And  it  should  not  be  forgotten  in  this  connection  that  usually  the 
facts  in  a  case  are  narrated  by  living  witnesses  in  court,  whose 
look  and  manner  and  the  probability  of  whose  story  should  be 
scanned  and  weighed  by  men  practiced  in  the  ways  of  human 


TRIAL  BY  JURY.  169 

nature,  and  not  easily  to  be  imposed  upon.  But  grant,  if  yea 
please,  that  there  is  no  advantage  in  these  respects  with  the  jury 
on  the  grounds  which  I  have  claimed;  is  there  nothing  still  in  the 
fact  that  the  verdict  of  a  jury  is  the  aggregate  wisdom  of  twelve 
men,  while  the  finding  of  a  judge  is  but  the  wisdom  of  one  man  ? 
Do  the  scriptures  say  untruly,  then,  and  is  there  no  safety  in  a  mul- 
titude of  counsel  ? 

Again,  it  may  well  be  urged  as  an  argument  for  a  trial  by  jury 
in  civil  cases  that  the  judge  has  already  enough  to  do,  to  preside  in 
his  court,  to  dispose  of  routine  and  exparte  business,  and  to  decide 
all  questions  of  law  which  may  arise  upon  a  trial,  including  his  final 
instructions  or  charge,  without  being  burdened  with  the  finding  of 
the  facts  also.  There  is  reason  enough,  certainly,  why  he  should, 
if  possible,  be  relieved  of  this.  We  should  not  ask  too  much  of 
one  man,  when  we  can  have  the  work  of  many.  Besides  the  find- 
ing of  the  facts  and  the  application  of  the  rules  of  the  law  to  these 
facts  are  two  entirely  separate  and  dissimilar  processes  which  do  not 
help  each  other.  They  should  therefore  be  given  to  separate  hands 
to  do. 

If  I  am  right  in  these  things,  then  the  jury  system  is  justified  on 
the  score  of  convenience  and  utility,  even  in  ordinary  civil  dis- 
putes, and  the  objection  of  costs  and  expense  is  of  too  trivial  a  nature 
to  be  weighed  against  such  solid  public  advantages.  The  State  and 
the  people  can  always  afford  to  pay  for  that  which  will  aid  the 
cause  of  justice  in  any  degree,  and  nothing  can  possibly  be  so  expen- 
sive and  costly  to  them  as  the  denial  of  a  full  and  fair  trial  to  any 
suitor  in  court. 

BUT  CHIEF  IMPORTANCE  AND  GLORY   OF   TRIAL  BY  JURY  IN  CRIMINAL 
CASES  AND  AS  AN  ALLY  AND  BULWARK  OF  CIVIL  LIBERTY. 

But  it  is  in  another  and  greater  field  that  the  trial  by  jury  becomes 
a  matter  of  supreme  concern  to  the  citizen,  and  rises  to  the  dignity 
of  one  of  the  chief  props  and  bulwarks  of  civil  liberty.  Here  its 
use  cannot  well  be  questioned.  Here,  certainly,  it  needs  no  defense. 
The  leaning  of  the  law,  in  criminal  causes,  should  be  to  the  side  of 
protection  and  humanity.  And  so  it  is  declared  to  be.  The  State 
is  great  and  powerful,  and  overshadows  the  individual;  and  though 
it  be  necessary  for  its  good  that  crime  be  prevented  and  punished, 
yet  the  State  is  not  greatly  harmed  by  the  escape  of  a  guilty  man. 
But  the  conviction  and  punishment  by  death  or  lingering  imprison- 
ment of  an  innocent  man  is  a  thing  unspeakably  shocking.  No 
care  can  be  too  great  to  prevent  such  a  tragedy.  "  Better,"  then, 
says  the  humane  maxim,  "that  ninety-nine  guilty  men  should  escape 


170  MODERN  JURY  TRIALS. 

rather  than  one  innocent  man  should  suffer."  And  all  our  human 
hearts  and  sympathies  respond  amen  to  this. 

So  the  law  of  England  and  America — the  common  law — has  built 
up  for  ages  its  impregnable  wall  of  protection  around  the  citizen. 
It  has  covered  the  accused  with  the  shield  of  all  its  presumptions 
in  favor  of  innocence,  and  tenderly,  humanely  giving  him  the  ben- 
efit of  every  reasonable  doubt.  And  to  make  sure  that  he  shall 
have  no  injustice  done  him,  it  has  given  him  the  sacred  right  of  a 
trial  by  a  jury  of  his  peers,  where  only  a  unanimous  verdict  of 
twelve  men  shall  take  from  him  his  good  name,  his  liberty  or  his 
life.  Not  to  any  single  man,  however  honest  or  wise,  however 
trained  or  learned,  will  the  law  give  over  such  supreme  and  terrible 
functions.  Is  not  this  wise  as  well  as  humane  ?  Would  it  be  well 
to  change  this  rule  and  put  such  tremendous  issues  into  the  hands 
of  a  single  judge  and  make  him  pass  upon  the  law  and  the  fact 
also,  of  guilt  ?  I  think  nobody  will  thus  contend.  Whatever  may 
be  thought  about  the  wisdom  or  policy  of  jury  trials  in  ordinary 
civil  disputes,  every  lawyer  and  every  right  thinking  man  will  wish 
the  jury  system  retained  in  criminal  causes. 

And  there  is  another  reason  still,  even  graver  and  deeper  than 
any  I  have  yet  named,  why  the  trial  by  jury  should  never  be  aban- 
doned. Not  alone  is  it  a  protection  and  a  shield  to  the  individual 
citizen,  but  it  is  also  a  chief  pillar  of  support  to  that  great  civil 
fabric  in  which  are  bound  up  the  rights  and  liberty  of  every  citizen 
of  this  country  and  of  England.  The  right  of  a  trial  by  jury,  a 
great  popular  right,  a  right  belonging  to  the  whole  people,  is  needed 
in  the  State  to  guard  against  tyranny  and  oppression  by  the  gov- 
ernment. In  the  mother  country,  this  right  expressly  named  in 
Magna  Charta,  of  a  trial  by  a  jury  of  his  peers,  has  been  to  many  a 
noble  English  patriot  the  open  door  of  escape  from  the  blood- 
thirsty minions  of  a  tyrannical  king.  Here  we  have  no  favored 
classes;  we  are  all  peers,  each  of  the  other,  but  we  all  belong  to 
the  people,  and  a  jury  is  pre-eminently  a  tribunal  of  the  peopltw 
Thus,  as  a  fortress  and  citadel  of  liberty  in  which  the  citizen  may 
take  refuge  in  calamitous  times  of  public  commotion  or  danger, 
when  the  safe  ways  of  the  State  are  broken  up,  and  the  hand  of 
power  is  outstretched  to  bloody  and  violent  deeds  of  oppression, 
the  trial  by  jury  is  worth  all  that  it  cost  in  the  long  struggle  in 
English  history  to  secure  and  maintain  it.  And  this  great  reason 
of  State  must  therefore  be  added  to  all  the  other  solid  and  weighty 
considerations  which  uphold  the  jury  system. 


TRIAL  BY  JURY  171 

THE   \VOEKIKG   OP   THE    SYSTEM — ITS   DIFFERENT   PARTS. 

How  does  this  institution,  so  important  to  the  citizen  and  the 
State,  and  so  intimately  connected  with  the  administration  of  the 
law,  meet  the  ends  for  which  it  was  designed,  and  what  is  needed 
for  its  true  and  harmonious  working?  Let  me  glance  now  at  the 
trial  by  jury  as  we  know  it  to-day,  in  this  country,  with  its  usual 
appointments  and  surroundings.  I  want  to  analyze  some  of  its 
leading  elements,  and  to  speak  of  some  of  the  duties  which  it 
imposes  upon  its  chief  actors.  For  the  trial  by  jury  means  more 
than  the  jury,  merely,  and  its  duties.  There,  besides  the  jury,  is 
the  judge  who  presides;  there  are  the  parties,  the  contending  rei 
of  the  suit  and  their  witnesses;  and  there,  finally,  to  complete  the 
scene,  are  the  advocates  for  the  respective  sides. 

Each  of  these  parties  is  indispensable  to  a  trial,  to  say  nothing 
of  sheriff  and  clerk,  and  other  officers  and  appendages  belonging  to 
a  court.  Each  is  a  portion  of  the  whole,  and  all  must  move 
together  to  reach  a  judicial  result.  Here  is  the  law's  mechanism; 
the  wheels  and  cogs  which  perform  their  distinct  and  separate 
offices.  But  this  is  no  inanimate  machine  which  is  now  set  in 
motion;  no  material  contrivance  of  human  ingenuity,  working  with 
wood  or  stone  or  iron,  and  for  a  material  purpose.  It  is  rather  the 
delicate  and  profound  adjustment  of  the  subtle  and  imponderable 
forces  of  the  human  mind  and  soul;  the  perception,  the  reason,  the 
judgment,  the  conscience — all  called  into  action,  and  all  com- 
bined in  the  effort  to  reach  those  two  grand  moral  ends — truth  and 
justice.  All  this  gives  dignity  and  seriousness  to  such  a  proceed- 
ing. So,  also,  is  there  something  essentially  picturesque  and  dra- 
matic in  every  trial  by  jury.  It  is  always  a  living  panorama  of 
human  life  and  experience,  which  is  enrolled  in  a  trial  in  a  court  of 
justice;  sometimes  grotesque  and  ludicrous  as  any  comedy;  some- 
times deep  and  awful  as  any  tragedy. 

THE  ACTOE8  EST  A  TRIAL — THE  JUDGE. 

Only  a  hurried  glance  can  I  give  to  the  actors  upon  this  stage. 
First,  there  is  the  judge,  who  presides,  and  declares  the  law.  His 
part  is  a  great  one,  and  for  him  we  have  all  inherited  a  traditional 
reverence.  At  the  name  of  his  title,  there  rises  before  our  minds, 
from  the  awful  mists  and  shadows  of  the  common  law  and  its  his- 
tory, the  august  form  of  the  ideal  judge,  sitting  with  stately  dig- 
nity upon  the  judgment  seat,  holding  with  even  and  steady  hand 
the  great  balances  of  justice  and  equity;  with  the  law's  majesty 
upon  his  brow,  and  the  law's  terrors  in  his  eye,  and  robed  in  spot- 


172  MODERN  JURY  TRIALS 

less  ermine,  type  and  emblem  of  the  whiteness  of  his  character 
and  his  judgments.  Alas,  that  this  great  presence  should  so  shrink 
and  vanish  away  when  we  look  upon  some  of  our  living  judges! 

But  let  us  not  expect  too  much  of  our  judges — especially  while 
we  pay  some  of  them  so  little — for  they  are  but  men  like  the  rest 
of  us.  I  do  not  speak  here,  of  course,  of  our  law  judges  proper — 
our  judges  of  courts  of  last  resort — but  only  of  nisi  pritu  or  trial 
judges. 

The  chief  qualifications  and  duty  of  a  judge,  who  presides  at  a 
jury  trial,  can  be  easily  and  briefly  stated.  First  of  all,  of  course, 
a  judge  should  be  honest.  Without  this  jewel  in  his  crown  all  the 
rest  is  worthless.  Nothing  can  make  up  for  this.  It  is  bad  enough 
to  be  a  dishonest  man  or  lawyer,  but  a  dishonest  judge  is  an  abom- 
ination to  men  and  a  grief  to  the  angels.  He  poisons  a  clear  foun- 
tain from  which  all  the  people  must  drink.  Let  him  ever  be  held 
in  utter  abhorrence,  whatever  his  abilities;  even  if  he  be  great  and 
wise  as  Bacon.  Next,  a  judge  should  be  impartial.  The  law  is 
equal,  the  law  is  no  respecter  of  persons;  and  a  judge  is  but  a  min- 
ister and  servant  of  the  law.  His  duty,  then,  in  this  respect  is 
plain.  Then,  a  judge  should  have  dignity.  I  do  not  mean  that 
opaque  and  owlish  dignity  which  is  simply  ponderous;  but  that 
which  is  lighted  and  lifted  up  by  grace  and  intelligence  ;  the  easy 
presence  and  the  cultivated  manners,  combined  with  the  high  sense 
of  personal  honor  and  the  lofty  judicial  purpose;  all  making  a 
judge  who  adorns  as  well  as  honors  the  bench.  Such  a  judge  I  saw 
ten  years  ago,  sitting  in  a  case  of  murder,  in  one  of  the  courts  of 
the  city  of  New  York,  and  whenever  I  see  that  man's  name,  as  I 
frequently  do,  for  he  has  since  filled  a  high  executive  office,  and 
become  a  distinguished  leader  of  his  party,  and  one  of  the  public 
men  of  the  country,  I  recall  him  as  I  saw  him  then,  presiding  with 
that  blended  gentleness  and  firmness,  and  with  a  grace  and  finish 
of  judicial  manners  which  I  shall  never  forget. 

And  a  judge  should  have  dignity  and  weight  of  character  aa 
well  as  dignity  of  presence  and  manners;  for  when  he  takes  his 
seat  upon  the  bench,  men's  eyes  will  see  the  man  who  is  behind  the 
judge.  For  myself,  I  esteem  this  one  of  the  most  necessary  and 
desirable  qualities  for  a  judge;  and  it  is  one  that  I  think  is  too 
much  overlooked  in  these  later  times,  in  our  selection  of  judges. 
This  may  be  partly  owing  to  the  vicious  method  of  choosing  our 
judges  by  the  caucus;  but  it  is  certain  that  there  has  been  a  great 
decline  in  this  respect,  in  many  quarters,  and  that  there  is  danger 
that  the  bench  may  lose  that  traditional  respect  and  reverence  with 
which  it  has  always  been  regarded  by  the  people.  The  great 


TRIAL  BY  JURY.  173 

judges  have  nearly  always  been  men  of  high  personal  character. 
We  venerate  the  names  of  Hale,  of  Mansfield,  and  of  Marshall,  not 
more  for  the  broad,  clear  intellect  and  the  deep  learning,  than  for 
the  lofty  dignity  of  character,  the  high  moral  purpose,  and  the 
penetrating  intuition  of  justice,  which  like  unfailing  springs 
flowed  out  into  the  clear  pages  of  their  illustrious  lives. 

Turning  now  to  the  intellectual  furnishing  of  a  judge,  it  is  easy 
to  see  what  we  want — far  easier  than  to  find  what  we  want.  First 
of  all,  a  judge  at  nisi  prius  should  have  a  clear  head  and  a  decisive 
will.  He  should  apprehend  readily  and  decide  promptly.  There 
should  be  no  confusion  or  irresolution.  A  jury  trial,  with  every- 
body waiting,  is  no  place  for  a  judge  to  doubt,  and  read  law  and 
ponder.  It  is  of  first  importance  that  he  decide  all  questions  at 
once,  so  that  the  trial  may  proceed,  and,  if  he  makes  mistakes  they 
may  be  corrected  by  a  court  which  can  take  all  the  time  it  wishes. 
Next,  and  as  a  most  important  qualification,  a  trial  judge  should  be 
a  man  of  broad  common  sense,  a  man  who  understands  human 
nature  at  first  hand,  on  the  witness  stand,  in  the  jury  box  and  in 
the  bar. 

If,  to  these  qualities  he  can  add  broad  and  deep  learning  in  the 
law,  it  is  well,  and  this  will  fill  out  the  perfect  picture  and  model 
of  a  great  judge.  But  I  put  this  qualification  last  in  the  order, 
for  the  reason  that  it  can  better  be  dispensed  with  than  any  of  the 
others.  Learning  alone  will  not  make  a  judge;  nor  even  learning 
joined  to  high  personal  character.  Something  more  is  needed.  The 
native  hue  of  resolution  must  not  be  sicklied  o'er  with  the  pale  cast 
of  thought.  He  must  be  a  man  of  action,  with  faculties  all  alive 
and  alert,  a  man  of  honest  heart  and  sound  head,  and  firm  will,  and 
knowledge  of  every-day  human  nature,  who  successfully  presides 
over  the  always  arduous,  and  sometimes  stormy  and  exciting  scenes 
of  a  trial  by  jury.  The  greatest  judges  are  born  judges,  having, 
like  the  true  orators  and  poets,  the  royal  commission  of  nature, 
impressed  with  the  seal  of  God  himself,  to  attest  their  right  to 
discharge  the  high  duties  of  the  bench. 

THE  PART  OF  THE  JURY WANT   OV   RESPONSIBILITY   IN  JURORS. 

I  shall  say  but  a  word  of  the  part  the  jury  plays  in  the  trial,  and 
that  only  in  regard  to  the  character  and  duty  of  its  individual 
members.  I  have  already  spoken  of  it  in  its  collective  form  and  as 
an  institution  of  the  law.  The  theory  of  the  trial  by  jury  is — and 
this  is  held  to  be  its  chief  excellence  by  one  of  its  ablest  eulogists 
— that  the  jury  is  a  tribunal  suddenly  called  from  the  body  of  the 
people  to  try  the  facts  of  a  case,  and  that  after  discharging  that 


174  MODERN  JURY  TRIALS. 

duty,  it  as  suddenly  dissolves  and  returns  to  the  people  again.  It 
is  a  tribunal,  therefore,  which  offers  little  time  or  opportunity  for 
tampering  or  corruption,  before  it  begins  its  work,  and  when  that 
work  is  done  it  disappears  so  suddenly  and  completely  that  nobody 
can  hold  it  to  account.  I  know  it  is  the  policy  of  the  law  to  pro- 
tect the  jury  from  any  civil  or  criminal  responsibility  for  its  ver- 
dict; and  this  exemption  from  account  has  given  it  a  freedom  and 
independence  most  necessary  to  its  highest  usefulness.  This, 
indeed,  is  a  great  merit  in  the  jury  system,  but  it  gives  rise,  at  the 
same  time,  to  one  serious,  practical  defect,  which  every  lawyer  has 
had  occasion  to  notice.  I  refer  to  the  want  of  individual  responsi- 
bility in  juries.  It  is  easy  to  see  how  this  comes.  Each  juror  is 
put  into  the  box  ignorant  of  the  case  which  he  is  to  try,  and  this 
very  ignorance  the  law  encourages,  as  a  test  of  his  impartiality. 
He  looks  about  him  and  sees  eleven  other  men,  each  one  as  ignorant 
of  the  case  as  himself,  and  each  with  a  responsibility  as  great  as 
his  own.  He  has  nothing  to  do  but  listen;  he  is  not  called  on  to 
say  anything;  he  is  charged  to  refrain  from  declaring  his  impres- 
sions to  his  fellows,  even;  and  when  all  is  done,  and  the  case  is 
submitted,  he  casts  a  silent,  unrecognized  ballot  with  the  rest. 
Even  should  discussion  arise  in  the  jury  room,  and  he  be  called  on 
there  to  express  his  opinion,  the  law  will  seal  the  lips  of  all  who 
hear  him,  so  that  what  he  says  and  how  he  votes  may  never  be 
known  to  the  outside  world.  Under  these  circumstances  it  is 
natural  that  an  indolent  or  timid  juror  should  fail  to  give  the  case 
an  earnest,  thoughtful  and  conscientious  attention;  that  he  should 
sink  his  individuality  in  the  mass,  and  hide  his  own  responsibility 
behind  the  eleven. 

It  is  for  this  reason  that  the  law  and  public  duty  alike  require  of 
every  individual  juror  the  full  and  independent  exercise  of  his  own 
judgment  and  conscience  in  every  case.  I  think  it  would  be  well 
if  this  duty  could  be  emphasized  from  the  bench.  The  verdict 
of  a  jury  should  stand  for  the  aggregate  judgment,  intelligence  and 
conscience  of  twelve  men.  Of  course,  under  our  system,  and  with 
the  exceptions  allowed,  it  cannot  represent  the  highest  intelligence. 
But  with  some  exceptions,  chiefly  in  the  large  cities,  and  growing 
out  of  improper  and  corrupt  selections  by  ignorant  or  dishonest 
officers,  our  American  juries  are  supposed  to  represent,  and  do  gen- 
erally, I  think,  represent  the  average  intelligence  of  our  great 
middle  class.  Every  man  who  submits  his  case  to  a  jury  has  a 
right  to  such  a  verdict  as  I  have  described.  That  he  does  not 
always  get  such  a  verdict,  we  know,  and  frequently  have  occasion 
to  lament.  It  is  because  our  jurors  do  not  feel  their  personal 


TRIAL  BY  JURY.  175 

responsibility  and  do  their  personal  duty  in  a  case  where  they  sit, 
but  evade  this  duty  and  responsibility  in  the  mass,  each  hiding 
behind  the  other  eleven. 

It  is  for  this  reason  that  I  confess  to  having  always  had  a  meas- 
ure of  sympathy  for  that  much  abused  and  denounced  individual, 
the  disagreeing  or  minority  juror.  I  cannot  always  bring  myself 
to  join  in  the  chorus  of  denunciation,  which  is  set  up  over  this  poor 
Ishmaelite  of  the  courts.  Why  should  he  always  be  thus  assailed  ? 
Does  it  necessarily  follow  that  the  other  eleven  are  right,  and  he  is 
in  the  wrong?  Besides,  is  there  no  question  of  conscience  here? 
It  may  be  a  case  involving  directly  a  great  question  of  right  and 
wrong;  one  whose  decision  is  to  be  followed  with  consequences 
which  do  not  simply  take  away  money  or  property,  but  blast  char- 
acter, deprive  of  liberty,  or  take  human  life.  On  such  a  question 
ifi  he  to  follow  other  men's  judgments  and  take  other  men's  con- 
sciences ?  He  has  taken  a  solemn  oath  for  himself  to  find  a  true 
verdict;  what  shall  we  do  with  that  ?  If  he  thinks  the  crime  not 
proved,  shall  he  consent  to  send  an  innocent  man  to  the  dungeon 
or  scaffold  on  other  men's  judgments  and  oaths  ? 

Here  is  a  difficulty  which  all  must  see.  I  know  it  is  frequently 
aggravating,  in  small  cases  on  the  civil  side,  and  especially  on  ques- 
tions of  mere  damages,  to  have  verdicts  prevented,  and  parties  and 
the  public  put  to  expense  for  the  mere  obstinacy  of  a  single  juror. 
But  while  this  is  so,  who  shall  say  that  in  the  larger  and  graver 
cases  which  I  have  supposed,  it  is  not  the  juror's  duty  to  stand 
firmly  to  what  he  thinks  is  right,  notwithstanding  his  fellows  are 
of  another  opinion?  Must  he  not  justify  himself  to  his  own  con- 
science ?  Can  we  denounce  him  in  such  a  case,  and  join  in  accla- 
mations over  men,  who  in  science,  in  government  and  religion, 
have  stood  out  stubbornly  to  the  end  against  greater  odds — not  one 
to  eleven,  but  one  to  eleven  hundred  or  eleven  thousand  and  more 
— and  who  have  been  exalted  to  the  very  heights  of  honor  and 
fame,  and  pronounced  immortal  heroes  for  the  act  ?  Let  us  not  be 
unjust  or  inconsistent.  The  disagreeing  juror,  by  the  very  fact  of 
his  disagreement,  shows  that  he  has  a  mind  of  his  own,  and  that  is 
a  good  deal.  Commend  me  always  to  a  man  who  has  a  mind  of 
his  own  and  thinks  for  himself.  It  is  better  to  think  wrong  some- 
times than  not  to  think  at  all.  In  this  world  of  unthinking  agree- 
ment and  conformity,  where  so  many  men  seem  to  have  no  minds 
of  their  own,  and  only  wait  to  see  what  others  think,  I  cannot  help 
admiring  the  sturdy  Anglo-Saxon  independence  of  the  one  juror, 
who  stands  out  against  all  the  rest.  It  is  really  refreshing  once 
in  a  while,  to  find  a  man  who  will  sit  up  all  night,  without  meat 


176  MODERN  JURY  TRIALS. 

or  drink,  for  his  opinion — and  keep  eleven  other  men  up  with  him! 
There  is  no  sanctity  about  the  verdict  of  a  jury.  It  may  be  wrong 
and  false  like  the  greater  verdicts  of  a  sect,  a  party,  or  a  nation. 
Who  does  not  know  that  whole  nations  and  peoples  have  some- 
times, yes,  frequently,  been  in  the  wrong,  and  rendered  false  ver- 
dicts, and  cruel  verdicts,  which  have  been  set  aside  in  the  great 
court  of  history.  The  brave  minority,  which  opposed  those  ver- 
dicts, even  unto  death,  have  earned  the  gratitude  and  received  the 
plaudits  of  mankind. 

THE  JUBY  ADVOCATE — HIS  NECESSITY. 

I  come  now  to  a  most  important  feature  in  the  trial  by  jury;  one 
not  only  most  essential  to  it,  but  of  peculiar  interest  to  those  whom 
I  address.  I  am  to  speak  now  of  the  advocate,  his  necessity,  his 
qualifications  and  his  duty.  Here,  too,  while  I  have  much  to  say, 
I  must  necessarily  be  brief.  The  great  subject  opens  out  before 
me  in  many  inviting  ways,  but  I  must  not  follow  them  too  far,  lest 
my  hour  shall  close  upon  an  imperfect  and  incomplete  picture  of 
what  I  wish  to  present. 

Only  a  word  shall  I  say  of  the  necessity  for  the  advocate  in  the 
trial  by  jury.  I  am  not  here  to  combat  or  argue  with  that  igno- 
rant and  vulgar  misapprehension  of  the  law's  justice,  which  would 
abolish  lawyers  and  advocates.  Widespread  as  this  prejudice 
sometimes  seems  to  be,  it  is  so  utterly  destitute  of  reason,  and  so 
plainly  gives  way  before  the  least  reflection,  that  it  never  takes 
any  tangible  form  or  shape,  but  lives  only  on  men's  tongues,  as  a 
thoughtless  and  flippant  accusation  against  the  bar.  It  has  no 
solid  influence  in  society  or  the  State.  Every  man  who  reflects  a 
moment,  will  see  that  an  advocate  is  indispensable  to  a  trial  by 
jury;  just  as  indispensable  as  the  judge,  or  the  jury  itself.  Anglo- 
Saxon  justice,  the  justice  of  the  English  law,  does  not  condemn  a 
man  unheard.  It  gives  him  the  fullest  and  fairest  opportunity  for 
defense.  It  will  hear  what  the  State  or  his  adversary  says  against 
him,  and  then  he  will  hear  what  he  has  to  say  on  the  other  side. 
In  short,  it  hears  both  before  it  decides.  The  trial  is  in  a  court  of 
law,  and  it  is  the  law  which  governs  and  controls  in  every  case. 
But  the  law  is  a  great  and  abstruse  science,  and  only  those  who 
make  its  study  a  life  work,  can  understand  and  administer  it.  The 
great  body  of  the  people,  of  course,  cannot  know  or  master  this 
science.  Hence  the  necessity  for  a  class  of  men,  trained  and  edu- 
cated in  the  law,  whose  duty  and  business  it  shall  be  to  stand  in  th 
courts  and  assist  in  the  application  of  i's  rules  and  principles  to 
the  thousand  varying  cases  of  fact,  which  arise  in  the  clashing  of 


TRIAL  BY  JURY.  177 

men's  interests,  rights  and  passions,  in  the  daily  march  and  whirl 
of  the  world's  affairs. 

And  so  in  all  ages  and  in  all  nations,  where  there  has  been  any 
approach  to  civilization,  the  lawyer  has  been  found.  Greece  and 
Rome  had  him,  though  they  did  not  have  the  trial  by  jury;  and 
indeed,  he  has  flourished  in  past  ages,  and  flourishes  to-day  in  every 
country  on  the  globe,  where  any  form  of  trial  is  known,  so  indis- 
pensable is  he  to  the  very  idea  of  a  trial.  He  is  ordained  in  the 
justice  and  humanity  of  the  law  to  represent  and  plead  for  those 
who  cannot,  in  the  very  nature  of  the  case,  properly  or  effectively 
conduct  their  own  cause  in  the  court. 

THE    QUALIFICATIONS   OF  THE    ADVOCATE. 

What  are  the  qualifications  needed  in  the  advocate  or  jury  law- 
yer ?  I  speak  here  especially  of  natural  qualifications,  and  those 
which  are  acquired  in  the  study  and  practice  of  the  art  of  advo- 
cacy, rather  than  of  the  preliminary  and  general  learning  in  the 
law  required  by  the  profession.  For  the  jury  lawyer,  especially, 
is  not  made  by  this  general  training.  He  is  more  a  product  of 
nature  than  of  the  schools.  I  do  not,  by  any  means,  wish  to  dis- 
parage learning  at  the  bar,  but  learning  alone  will  not  make  good 
advocates,  else  they  would  be  more  common  in  the  courts.  They 
are  not  common;  they  are"  rare;  and  the  great  advocates  are  at 
wide  distances  apart — two  or  three  at  a  time,  perhaps,  in  England, 
or  America;  a  half  dozen  in  a  century.  Statesmen  and  great 
divines,  and  warriors  even,  are  more  common.  In  their  scarcity, 
and  possibly  in  some  other  respects,  the  great  advocates  more 
resemble  the  great  actors,  who  hold  the  mimic  stage,  as  they  so 
often  do  the  real. 

This  is  because  there  is  a  genius  of  advocacy,  as  there  is  a  genius 
of  acting  and  a  genius  of  poetry.  Talent  and  application  will 
make  a  great  statesman  like  Palmerston,  and  sometimes  a  great 
soldier  like  Wellington,  but  only  genius,  which  is  far  more  rare, 
will  make  a  great  advocate  like  Erskine  or  Choate.  In  the  same 
way,  the  great  poets  are  born,  not  made.  They  do  not  plod,  and 
study,  and  make  poetry  at  so  many  hours  to  the  day,  as  business 
men  work  in  their  stores  and  offices,  but  they  mount  up  to  the 
heavens  of  imagination  when  the  divine  inspiration  comes  upon 
them.  We  cannot  imagine  Shakespeare  writing  Lear  and  Macbeth 
at  regular  days'  works  or  Byron  dashing  off  his  sublime  apostropne 
to  the  ocean,  or  his  magnificent  description  of  the  mountain  storm 
of  Jura,  as  an  allotted  task  before  he  should  go  to  his  dinner.  It 
was  the  genius  of  poetry  which  took  possession  of  these  men  and 
12 


178  MODERN  JLRY  TRIALS. 

transfigured  their  faces  and  lifted  them  up  into  the  mountain  of 
song,  where  they  took  little  note  of  time,  or  hunger,  or  worldly 
things,  until  the  lofty  strain  was  finished.  So  Curran  stood  before 
an  Irish  jury,  the  very  impersonation  of  the  genius  of  advocacy,  as, 
with  flashing  eye  and  quivering  lips,  he  thrilled  or  melted  them 
with  thoughts  of  country  or  memories  of  home.  No  labor  of  pre- 
paration could  produce  such  results;  it  was  the  flaming  out  of  pure 
genius,  the  most  unalloyed  and  perfect  in  his  case,  and  in  this 
respect,  which  has  ever  appeared  at  the  bar. 

But  I  do  not  forget  that  there  must  be  advocates  who  have  not 
this  divine  gift,  and  I  would  by  no  means  be  understood  to  under- 
value learning  and  preparation  in  the  advocate.  To  a  certain 
extent,  at  least,  these  are  indispensable.  What  I  meant  to  say  was, 
simply,  that  greatness  in  this  calling  must  depend  on  the  original 
endowment  of  nature;  that  a  great  advocate  cannot  be  made  by 
application,  however  severe;  by  learning,  however  profound.  I 
know  it  is  the  fashion  with  us  here,  in  this  country,  where  we  have 
no  separate  orders  at  the  bar,  to  attempt  all  things  in  tbe  profes- 
sion and  to  wander  indiscriminately  into  all  its  fields.  The  same 
man  does  the  work  of  a  scrivener  or  conveyancer,  gives  law  advice 
in  his  office  like  a  chambers  counsel,  is  a  practitioner  in  chancery, 
a  draughtsman,  an  attorney  in  the  inception  and  preparation  of  his 
cases  for  trial,  and  finally  the  advocate  before  the  jury.  Every 
fair  lawyer  is  supposed  to  be  capable  of  all  these  things,  and 
almost  every  lawyer  attempts  them  all.  Now,  I  think  we  cover  too 
much  ground  here,  and  that  this  promiscuous  employment  tends  to 
repress  and  destroy  especial  excellence  in  the  profession.  In  the 
large  cities,  it  is  true,  this  state  of  things  is  somewhat  modified, 
because  there  men  can  find  enough  to  do  in  certain  branches  of  the 
profession,  for  which  they  may  be  particularly  adapted;  but  it  is 
not  so  in  the  country,  where  the  lawyer  is  expected  to  do  every- 
thing, from  the  drawing  of  a  deed  or  simple  contract,  to  the  con- 
ducting of  a  trial  for  murder.  In  a  new  country  like  ours,  and 
with  the  practical  difficulties  in  the  way,  it  may  not  be  possible  for 
us,  but  I  believe  the  English  system  is  the  best.  The  highest 
excellence  at  the  bar  cannot  be  attained,  where  the  practitioner 
does  a  little  of  this  and  a  little  of  that,  and  never  enough  in  any 
one  line  to  bring  out  all  his  powers.  And  the  work  of  the  jury 
lawyer  is  one  that  especially  requires,  besides  natural  adaptation, 
every  day  practice  and  experience.  Besides  there  is  something 
absurd  and  almost  grotesque  in  its  unfitness  in  a  lawyer,  whose 
voice  ought  never  to  be  heard  outside  an  English  court  of  chancery, 
standing  up  before  a  jury,  dry,  unsympathetic,  passionless,  desti- 


TRIAL  BY  JURY  179 

tute  of  every  attribute  of  an  orator,  to  plead  for  a  man's  liberty,  or 
his  life. 

I  hold  eloquence  to  be  almost  a  sine  qua  non  in  advocacy.  The 
true  jury  lawyer  ought  to  be  an  eloquent  man.  I  do  not  mean 
necessarily  that  he  should  be  a  great  orator;  but  he  ought  to  Eave 
some  of  the  attributes  of  eloquence.  He  ought  to  be  a  man  of 
quick  sympathy,  of  impressible  and  electric  temperament;  a  man 
to  catch  the  inspiration  of  a  cause  and  throw  his  feelings  along 
with  his  logic  into  the  jury  box.  Here,  I  think,  is  the  true  secret 
of  the  great  advocates.  It  consists  in  that  personal  magnetism, 
that  indescribable  charm  and  sympathy  of  voice  and  manner  which 
gives  them  control  over  the  feelings  of  a  jury,  and  when  that  is 
obtained  the  rest  is  comparatively  easy.  With  this  main  qualifica- 
tion, which  is  largely  a  question  of  temperament,  the  advocate 
should  have  a  quick  perception,  good  judgment,  self-control,  know- 
ledge of  human  nature,  and  the  power  to  handle  facts.  This  mas- 
tery of  the  logic  of  facts  is  indeed  one  of  the  chief  qualifications  of 
the  good  advocate.  It  is  what  he  needs  to  analyze  and  detect  the 
weak  points  of  his  adversary's  case  and  to  arrange  and  mass  his 
own  evidence  with  the  most  effective  and  telling  power  upon  the 
jury.  Put  this  with  that  electric  and  sympathetic  eloquence  which 
I  have  described,  and  you  have  a  vast  power  to  let  loose  upon  the 
jury  in  the  final  argument ;  a  power  which  perhaps  too  frequently 
sweeps  them  in  its  resistless  might  from  the  safe  conclusions  of 
reason,  and  sometimes,  indeed,  from  the  solid  foundations  of 
justice. 

ADVOCACY  AND  STATESMANSHIP  COMPARED. 

In  this  brief  outline  of  some  of  the  leading  qualifications  of  the 
jury  advocate  I  have  indicated  an  order  of  ability  which  is  neces- 
sarily rare.  But  though  rare,  I  do  not  consider  it  of  the  first  order. 
In  its  intellectual  part  it  is  keen  and  quick,  rather  than  deep  and 
profound,  in  its  moral  aspect  it  partakes  of  that  which  lies  upon  the 
surface  of  human  nature  rather  than  that  which  goes  down  to  the 
deeper  things  of  the  soul.  It  imparts  and  reflects  the  sympathy  of 
\,he  time  or  the  occasion,  instead  of  being  always  true  to  fixed  and 
unchangeable  moral  principles.  So  I  think  it  takes  a  higher  order 
o/  ability  to  make  a  great  philosopher  or  a  great  statesman  than  it 
does  to  make  a  great  advocate.  True,  the  themes  of  advocacy  and 
statesmanship  are  very  different.  The  advocate  deals  with  princi- 
ples in  the  concrete;  the  statesman  in  the  abstract.  The  advocate 
labors  in  the  courts  for  the  rights  or  interests  of  individual  men  in 
concerns  which  are  brought  directly  home  to  them  with  intense  and 


180  MODERN  JURY  TRIALS. 

practical  power.  The  statesman  in  the  Parliament,  or  the  Congress, 
deals  with  principles  and  generalizations  which  affect  men  in  classes, 
or  nations,  and  have  to  do  with  the  welfare  and  prosperity  of  states 
and  empires. 

Thus,  the  statesman's  work  is  necessarily  the  higher  and  more 
important,  and  I  think  it  requires  the  higher  ability.  This,  I  take 
it,  would  be  the  verdict  of  history.  There  have  been  some  men 
who  have  divided  almost  equally  the  honors  of  statesmanship  and 
the  bar.  Such  were  Brougham  and  Lyndhurst,  in  England;  such, 
largely,  our  own  Webster.  But  generally  the  two  spheres  have  been 
separated,  and  I  may  say  that,  with  respect  to  the  especial  depart- 
ment of  jury  advocacy,  they  have  always  been  separated.  Xo 
really  great  advocate  has  been  at  the  same  time  a  great  statesman. 
This  may  seem  a  hazardous  statement,  but  I  think  it  is  true.  Daniel 
Webster  was  a  great  man  before  a  jury,  as  he  was  certainly  in 
the  Senate.  But  he  lacked  a  great  many  things  to  make  him  such 
an  advocate  as  Rufus  Choate,  or  even  Ogden  Hoffman.  He  was  too 
slow,  too  ponderous,  too  unwieldy.  There  was  not  room  enough 
for  him  in  a  trial  before  a  jury.  A  man  like  Webster  could  not  bring 
his  vast  intellectual  armament  to  bear  in  such  a  trial.  It  does  not 
require  a  whole  army,  with  its  artillery,  infantry  and  cavalry,  to 
capture  an  isolated  point  or  break  through  a  single  place  in  the 
enemy's  line.  A  division,  or  sometimes  a  brigade,  or  even  a  regi- 
ment, which  can  be  handled  quickly,  is  better  for  this  purpose. 
And  so,  while  Webster  made  a  few  jury  arguments  that  were  mas- 
terpieces, still  he  cannot  be  regarded  as  beginning  to  equal,  in  his 
forensic  efforts,  the  splendor  of  his  senatorial  eloquence  where  the 
themes  were  greater  and  grander.  And  Webster  comes  as  near 
uniting  the  two  characters  as  any  other  name  I  can  think  of  in  our 
annals.  Remember,  I  am  speaking  here  of  jury  lawyers.  As  great 
constitutional  lawyers,  to  expound  and  advocate  great  constitu- 
tional questions  and  the  deep  underlying  principles  of  the  law, 
which  are  allied  to  statesmanship,  Webster  and  Pinckney  and  some 
other  of  our  statesmen  have  greatly  shone  and  stood  in  the  front  rank. 

But  Erskine,  and  Choate,  and  Hoffman,  and  other  advocates  of 
scarcely  less  note,  men  who  have  ruled  and  swayed  before  the  jury, 
have  so  lamentably  failed  in  statesmanship  that  they  fully  prove 
my  point. 

THE  DUTY  OP  THE  ADVOCATE THE  OLD  QUESTION  OF  THE  ETHICS  OI 

THE  PBOFESSION. 

What  shall  I  say  of  the  duty  of  the  advocate  ?  Surely  I  come 
here  upon  delicate  and  difficult  ground;  for  I  cannot,  with  my  views 


TRIAL  BY  JURY.  181 

of  the  subject,  content  myself  with  the  general  and  sweeping  answer 
that  the  advocate  is  to  stand  in  the  place  of  his  client  and  do 
everything  and  anything  in  his  name.  True,  he  represents  his 
client,  and  speaks  for  him  in  the  courts,  and  this  is  well  and  neces- 
sary and  wisely  ordained  in  the  fairness  and  justice  of  the  law. 
But  how  may  he  represent  his  client  ?  What  may  he  speak  for  him  ? 
These  are  the  questions  that  give  us  the  difficulty. 

It  is  the  old  difficulty  which  has  troubled  the  minds  of  some  men 
ever  since  the  days  of  Cicero  and  Quintilian,  and  even  before;  the 
difficulty  which  Dr.  Johnson  and  the  poet  Southey  have  discussed 
on  either  side;  settled  now,  perhaps,  satisfactorily  to  the  minds  of 
a  majority  of  lawyers  and  to  most  moralists,  but  to  some  not  yet 
wholly  removed.  Possibly,  nay  undoubtedly,  the  question  is 
aggravated  by  the  almost  universal  fashion  and  practice  of  the  bar. 
The  theory  of  advocacy  is  one  thing;  the  every  day  practice  of  it  is 
often  quite  another  thing.  And  yet,  as  a  matter  of  theory,  there 
have  always  been  those  inside  of  the  profession  who  have  maintained 
a  doctrine  on  this  subject  which,  to  my  mind,  is  offensive  to  good 
morals  and  especially  degrading  to  advocacy.  It  is  the  doctrine 
advanced  by  so  great  a  man  as  Lord  Brougham,  and  practically  and 
conspicuously  illustrated  by  so  great  an  advocate  as  Ruf  us  Choate — 
the  doctrine  of  the  complete  and  utter  identification  of  the  lawyer 
with  his  client. 

An  over  partial  biographer  of  our  great  American  advocate,  him- 
self a  lawyer,  writing  with  all  the  ardent  zeal  of  private  friendship, 
and  unbounded  admiration  for  his  subject,  has  recorded  of  him  that 
"his  client  was  his  God;"  that  "his  client's  interest  was  his  relig- 
ion;" that  "he  never  inquired  whether  his  client  was  right  or 
wrong,  but  he  went  for  victory  to  the  last  beat  of  the  pulse  and  the 
last  roll  of  the  drum."  Perhaps  this  is  as  offensive  a  statement  of 
this  doctrine  as  we  can  find  anywhere,  connected,  as  it  is  in  this 
instance,  with  the  debasement  of  almost  superhuman  and  angelic 
powers,  but  it  is  elsewhere  enlarged  and  elaborated  by  Dr.  Johnson 
and  other  writers  into  a  system  of  plausible  and  fallacious  refine- 
ments of  judicial  casuistry  and  Jesuitism. 

I  cannot  descend  here  to  details,  but  I  must  protest  with  all  my 
might  against  this  specious  but  demoralizing  view  of  the  duty  of 
the  advocate.  I  contend  for  a  higher,  broader,  nobler  rule.  I 
know  that  so  great  an  authority  as  Cicero  has  said  that  the  first 
duty  of  the  advocate,  is  to  assist  him  who  most  needs  assistance; 
but  with  all  deference  to  a  name  so  illustrious,  I  hold  that  a  better 
rule  would  be  to  assist  him  who  most  deserves  assistance.  The 
theory  of  a  trial  by  jury  is  not  to  clear  guilty  men  who  are  in 


182  MODERN  JURY  TRIALS. 

trouble.  It  is  rather  to  afford  an  opportunity  for  the  conviction  of 
guilty  men  and  the  vindication  of  innocent  men  unjustly  charged 
with  crime.  When  guilt  is  known  or  confessed  there  is  no  need  of 
a  trial  in  the  real  and  full  meaning  of  the  term.  After  that  there 
remains  but  the  just  order  and  the  decent  formality  of  the  law.  A 
trial  is  an  inquiry,  an  endeavor  after  the  truth  or  fact  of  guilt  or 
innocence.  If  the  client  be  guilty,  then  he  does  not  need,  in  the 
contemplation  of  the  law,  the  assistance  of  the  advocate,  for  the 
fact  of  his  guilt  is  the  end  of  all  inquiry  on  the  subject,  and  the 
end  of  all  interest  which  the  law  takes  in  his  behalf.  For  the  rest, 
it  will  only  demand  that  the  fact  of  guilt  be  judicially  ascertained, 
and  in  assisting  to  do  this  the  advocate  serves  the  law  rather  than 
the  criminal. 

But  here  comes  the  casuists  and  say:  How  can  it  be  known 
that  he  is  guilty  until  he  is  proved  so  ?  It  cannot  be  judicially, 
technically  known,  it  is  true,  but  it  can  be  known  to  the  advocate 
in  the  broader  way  and  in  a  moral  and  popular  sense  just  as  other 
facts  are  known.  It  may  be  known  from  the  client  himself;  it  may 
be  known  from  overwhelming  moral  evidence  surrounding  the  case. 
This  is  the  state  of  facts  I  am  supposing,  and  this  is  the  reason  why 
I  say  that  it  is  not  what  the  client  needs  to  enable  him  to  escape 
a  just  penalty  which  he  has  incurred,  but  what  he  deserves  as  a 
man  whose  guilt  is  still  in  doubt,  at  least,  which  should  command 
the  zeal  and  the  service  of  the  advocate.  I  grant  that  the  lawyer 
should  not  prejudge  his  client's  cause;  that  he  should  presume 
everything,  indeed,  in  his  favor.  But  after  all  that  is  done  it  will 
frequently  happen  that  the  advocate  will  be  compelled  to  believe 
his  client  guilty.  It  is  specious  nonsense  to  say  that  we  can  never 
know  that  a  man  is  guilty  till  a  verdict  of  a  jury  has  pronounced 
him  so.  We  can  be  satisfied  of  it  sometimes  just  as  well  before  as 
after  the  verdict.  We  may  know  it  through  the  same  facts  which 
compel  the  verdict;  we  may  know  it  better  still  by  the  private 
confession  of  the  accused.  Shall  the  lawyer,  under  these  circum- 
stances, exert  himself  to  the  uttermost,  using  superior  powers  and 
skill  to  obtain  a  verdict  of  acquittal  for  his  client,  the  same  as 
though  he  knew  him  to  be  innocent  ?  Is  that  a  just  and  proper 
rule  ?  Is  that  the  true  idea  of  the  ethics  of  advocacy  ? 

I  protest  against  such  a  doctrine  as  a  wrong  to  society  and  a 
slander  upon  the  law.  I  insist  that  the  first  duty  of  the  lawyer  is 
to  society  and  the  law,  and  that  his  duty  to  his  client  is  always 
subordinate  to  this  higher  duty.  All  this  is  involved  in  his  law- 
yer's oath.  He  is  first  of  all  sworn  to  uphold  the  constitution  of 
the  State.  Upon  this  rests  the  whole  civil  fabric  of  society.  Next 


TRIAL  BY  JURY.  183 

he  is  to  be  true  to  the  court.  The  court  represents  and  stands  for 
the  sanctity  and  majesty  of  the  law  itself.  It  is  the  interpreter 
and  vindicator  of  the  law.  Last  he  is  to  be  true  to  his  client.  But 
he  cannot  be  true  to  his  client  in  any  just  sense  while  he  is  false 
to  society  and  the  law.  That  is  not  the  kind  of  truth  he  is  to  keep 
with  his  client.  His  oath  pre-supposes  no  conflict  between  his 
client's  interest  and  the  interests  of  the  State.  He  is  not  sworn, 
therefore,  to  help  a  guilty  man  whom  he  knows  to  be  guilty,  to 
escape  at  the  expense  of  law  and  justice.  If  he  does  this  he 
becomes  an  enemy  to  society  and  a  conspirator  against  the  law; 
for  society  cannot  be  held  together  without  the  punishment  of  the 
guilty,  and  the  law  is  powerless  and  dishonored  if  it  cannot  enforce 
justice.  Away,  then,  with  the  specious  plea,  the  dangerous  fallacy, 
that  the  highest  duty  of  the  lawyer  is  to  stand  between  his  client 
and  the  State  and  protect  him  always,  right  or  wrong.  No  doc- 
trine, in  my  judgment,  could  be  more  disloyal  to  the  State,  or 
degrading  to  the  profession.  Too  much,  far  too  much  is  this  doc- 
trine acted  upon  at  the  bar.  The  indiscriminate  and  over  zealous 
defense  of  criminals  without  thought  or  care  as  to  their  guilt;  the 
unreasonable  theories;  the  unscrupulous  tactics;  the  brow-beating 
of  witnesses;  the  reckless  assertions  and  the  bold  affectations  of 
truth  and  innocence — these  are  the  things  which  have  brought 
criminal  advocacy  into  disrepute  with  the  people;  which  have  kept 
so  many  able,  self-respecting  lawyers  from  this  department  of 
practice,  and  made  the  very  term,  criminal  lawyer,  signify  want  of 
character  and  honor;  have  almost  made,  indeed,  the  adjective  stand 
for  a  designation  of  the  kind  of  lawyer  rather  than  the  kind  of 
practice. 

No,  the  highest  public  duty  is  always  to  the  State,  and  nothing 
must  conflict  with  that.  The  lawyer  should  never  forget  that  he 
is  a  citizen.  He  should  never  lend  himself  or  hire  himself  to  any 
service  which  will  harm  or  hurt  society.  His  noble  profession  does 
not  require  him  to  do  this.  It  does  not  demand  that  he  be  the 
unscrupulous  aider  and  helper  of  ruffians  and  law  breakers,  nor  a 
mere  unthinking  human  machine  of  advocacy.  It  has  other  and 
higher  commands  for  him;  other  and  nobler  work  for  him  to  do. 

Let  me  not  be  misunderstood.  Every  man  who  prosecutes  or 
defends  a  civil  cause  in  a  court  of  justice  is  entitled  to  the  lawyer's 
help  to  make  a  fair  preponderance  in  his  favor;  every  man  who  is 
accused  of  crime  must  have  a  fair  and  impartial  trial  with  the 
assistance  of  counsel,  and  must  be  acquitted  if  not  proved  guilty 
beyond  a  reasonable  doubt.  While,  then,  the  lawyer  stands  for 
him  in  either  case,  he  does  it  as  an  officer  of  the  law  and  of  the 


184  MODERN  JURY  TRIALS. 

court,  and  under  a  solemn  oath  to  do  his  duty  to  both.  If  his  client 
is  in  the  wrong  and  he  knows  it,  I  think  it  is  his  duty  to  withdraw 
from  the  case,  or  at  most  to  see  only  that  the  forms  of  the  law  are  com- 
plied with,  that  only  justice  is  done  and  that  no  dangerous  prece- 
dent is  set.  If  next,  it  be  greatly  doubtful  to  him  whether  his 
client  be  in  the  right,  even  then,  I  say,  give  him  the  benefit  of  the 
doubt  and  struggle  manfully,  but  guardedly  and  within  the  bounds 
of  a  due  moderation,  for  his  cause.  So  much  is  due  to  the  client 
on  the  one  hand  and  to  the  law  on  the  other.  But  if  now  the  advo- 
cate knows,  or  fully  believes,  his  client  to  be  in  the  right;  to  be,  for 
instance,  an  innocent  man  unjustly  accused  of  a  great  and  heinous 
crime,  then  comes  the  supreme  duty,  the  highest  which  man  can 
perform  for  man.  Then  let  learning  and  eloquence,  and  tact  and 
energy,  and  every  power  and  attribute  be  put  under  contribution 
for  the  noble  work.  Stand  up  bravely,  then,  if  need  be,  against 
the  menace  of  power  or  the  frowns  of  public  opinion;  let  no  mobs 
terrify,  no  odds  appal,  no  opposition  daunt;  yield  not  one  inch  of 
ground  till  driven  from  it;  struggle  with  tireless  and  sleepless 
energy  to  save  a  fellow  man  from  a  fate  so  unspeakably  awful. 
This  is  true  advocacy  in  its  noblest  form,  almost  God-like  in  its 
character  and  the  crowning  glory  of  the  bar.  Such  advocacy  has 
been  seen  in  the  courts,  and  in  many  notable  instances  its  courage 
has  been  as  fine  and  its  chivalry  as  superb  as  were  ever  witnessed 
on  any  battle  field. 

ZHVEOVKMBNTS    AND    MODIFICATIOITS    NEEDED    IN   THB  JTTBY  SYSTEM. 

But  with  all  its  faults  of  advocacy,  and  with  the  many  impedi- 
ments to  its  fair  and  just  working,  the  jury  system  is  the  best  that 
can  be  devised,  and  should  be  retained.  The  fine  balance  of  its  sev- 
eral parts,  necessary  to  its  complete  and  harmonious  movement,  is 
frequently  disturbed  in  practice,  and  it  sometimes  seems  to  fail  of 
its  true  ends.  Like  all  human  institutions,  it  is  not  perfect.  It 
may,  undoubtedly,  be  improved,  and  I  think  it  ought  to  be  improved 
in  some  important  respects. 

In  the  first  place  I  think  it  should  be  improved  by  changing,  in 
civil  cases,  the  rule  requiring,  unanimity.  The  frequent  disagree- 
ment of  juries  is  one  of  the  just  complaints  against  the  system,  and 
these  are  the  necessary  fruits  of  this  rule.  I  cannot  here  go  into  a 
discussion  of  this  question,  which  has  already  received  the  atten- 
tion of  law-writers  and  law-reformers,  but  it  has  always  seemed  to 
me  that  the  weight  of  reason  and  argument  was  on  the  side  of  a 
modification  of  the  old  rule.  The  question  should  be  looked  at  in 
its  practical  bearings.  Whatever  the  origin  of  the  rule — whether 


TRIAL  BY  JURY.  185 

it  came  from  the  number  of  the  Saxon  compurgators,  or  from  an 
old  requirement  of  the  agreement  of  twelve,  when  the  whole  num- 
ber was  greater,  or  from  the  wish  of  the  law  to  protect  each  indi- 
vidual member  of  a  jury  from  responsibility  by  requiring  unanimity 
before  giving  any  effect  to  their  action,  it  should  give  way  to  a  bet- 
ter administration  of  justice. 

I  believe  this  modification  is  required  and  demanded  by  strong 
practical  reasons  and  considerations,  which  are  felt  every  day  in  the 
courts.  Certainly  the  requirements  of  unanimity  is  somewhat 
inconsistent  with  the  general  rule  which  prevails  in  a  republican 
form  of  government,  where  the  gravest  public  questions  are  settled 
by  a  bare  majority.  It  would  seem,  on  principle,  that  if  a  question 
which  vitally  affects  the  welfare  and  happiness  of  a  whole  people 
may  be  settled  by  the  preponderance  of  a  single  vote  in  millions, 
that  a  little  petty  matter  of  private  dispute,  between  two  neighbors, 
ought  to  be  settled  by  a  two-thirds  vote  of  a  jury  for  one  or  the 
other.  And  no  man  can  doubt  that  this  would  directly  facilitate 
the  disposition  of  causes  in  the  courts. 

I  would  not  hesitate,  then,  to  make  the  reform.  It  is  not  suffi- 
cient reason  to  me  for  retaining  a  bad  rule  to  say  that  it  has  pre- 
vailed for  many  hundred  years.  Because  it  is  old,  does  not  neces- 
sarily show  that  it  is  right.  But  while  I  would  make  this  change 
in  civil  cases,  and  permit  a  two-thirds  vote  to  carry  a  verdict,  I 
would  not  disturb  the  rule  in  criminal  cases,  for  there  the  accused 
ought  to  have  the  benefit  of  the  rule  as  it  stands.  The  humanity 
of  the  law  and  the  reason  for  greater  caution  and  certainty  all 
require  that  he  should  only  be  found  guilty  on  the  unanimous  judg- 
ment of  the  whole  twelve. 

Again,  another  disturbance  of  the  just  balance  and  working  of 
the  system  is  frequently  seen  in  the  wresting  of  the  trial  by  jury 
from  its  original  purpose  as  an  investigation  of  facts  and  turning  it 
into  a  proceeding  where  the  effort  seems  to  be  how  not  to  find  the 
facts.  The  utility  of  this  form  of  trial  lies  in  its  adaptation  to  find 
the  merits  of  a  case  by  a  direct  and  clear  inquiry  for  that  purpose. 
It  is  not  a  place  to  try  questions  of  law,  like  a  court  of  last  resort, 
and  it  should,  as  far  as  possible,  be  kept  clear  of  all  legal  technicali- 
ties and  discussions.  Our  jury  trials  are  frequently  burdened  with 
too  much  law.  I  know  it  is  often  the  policy  and  tactics  of  counsel 
for  defense  to  obscure  the  real  issues  of  fact  by  raising  false  issues 
of  law;  and  many  times,  too,  the  effort  is  successfully  made  to  draw 
the  mind  of  a  jury  away  from  the  main  and  decisive  facts  in  a  case 
into  labyrinths  of  fine-drawn  speculations  and  remote  collateral 


186  MODERN  JURY  TRIALS. 

questions.  Oar  courts  should  draw  the  line  more  tightly  and  keep 
closer  to  the  real  issues. 

It  is  these  long,  wearisome,  verbose  trials,  burdened  down  with 
remote  collateral  issues  and  hair-splitting  discussions  of  legal  tech- 
nicalities,  and  finally  closed  by  long,  jumbled  and  confusing  charges 
from  the  court,  that  produce  almost  inevitable  disagreement  of 
juries.  The  native  common  sense  and  discernment  of  a  jury  droop 
and  die  in  such  an  atmosphere.  From  such  a  trial  the  average 
juror  comes  forth  in  a  bewildered  and  half -demented  condition — 
almost  ready  to  be  sent  to  a  mad-house.  It  is  useless  to  expect 
just  and  intelligent  verdicts  under  such  circumstances.  One  of  the 
chief  things  which  needs  correcting  in  this  matter  is  the  judge's 
charge.  I  think  our  recent  statutory  fashion  of  giving  charges  in 
separate  and  detached  legal  propositions,  first  on  one  side  and  then 
on  the  other,  is  a  bad  one  in  practice,  and  tends  greatly  to  confu- 
sion. Our  judges  ought  to  be  able  to  charge  on  their  own  motion, 
in  language  so  clear  and  simple  that  the  most  ordinary  jury  could 
understand.  The  charge  of  the  court  should  be  clear  and  consistent 
with  itself,  a  logical  whole,  a  legal  setting  for  the  facts  of  the  case, 
or  the  outlining  of  its  legal  boundaries,  within  which  the  jury  are  to 
perform  their  duty.  It  should  generally  be  brief,  simple  and  gen- 
eral; it  should  not  descend  too  much  to  particulars,  and  above  all  it 
should  leave  the  jury  untrammeled  as  far  as  possible  in  their  own 
peculiar  field  and  province. 

One  further  improvement  in  the  jury  system  is  needed  to  bring 
it  into  complete  accord  with  the  spirit  and  progress  of  our  age.  I 
refer  to  a  modification  of  the  old  rule  of  challenge,  so  as  to  meet 
a  difficulty  which  is  frequently  found  in  securing  an  intelligent  jury 
in  cases  of  great  public  interest  or  notoriety.  The  want  of  a  proper 
readjustment  of  the  rule  excluding  jurors  on  the  ground  of  opinion 
to  the  actual  condition  of  our  newspaper-reading  people  has,  of 
late,  in  many  quarters  become  a  real  scandal  upon  the  law  and  a 
great  hindrance  to  its  just  administration.  A  general  reform  is 
needed  in  this  respect  throughout  the  country.  Here,  in  Michigan, 
however,  with  our  remedial  statute  upon  the  subject,  supplement- 
ing a  wise  and  liberal  construction  of  the  common  law  rule  by  our 
Supreme  Court,  we  have  little  left  to  be  desired. 

EBSKUTB    AND    CHOATK. 

Into  this  arena  of  the  trial  by  jury  have  stepped  some  of  the 
brightest  intellects  of  the  world.  In  the  brilliant  constellation  of 
advocates  who,  in  the  last  hundred  years,  in  England  and  America, 
have  reflected  the  light  and  glory  of  their  genius  upon  the  forensic 


TRIAL  BY  JURY.  187 

stage,  I  would  place  Erskine  and  Choate  at  the  head.  I  do  not  for- 
get Brougham,  and  Denman  and  O'Connell,  and  the  marvelous 
Curran  on  the  other  side  of  the  ocean,  nor  Pinckney  and  Hoffman 
and  Prentiss  and  Paul  Brown  and  Brady  on  this  side.  But  all 
these,  and  many  more  able  and  gifted  men  are  fairly  distanced  by 
these  two  great  and  incomparable  advocates,  who  must  stand  in 
their  respective  countries  as  the  bright,  particular  stars  of  the  jury 
forum. 

But  although  Erskine  and  Choate  were  almost  equally  great  as 
jury  lawyers,  their  lives  and  careers  present  a  series  of  sharp  and 
striking  contrasts.  Erskine,  the  scion  of  a  noble  Scotch  family, 
with  imperfect  early  education,  and  after  years  wasted  in  a  most 
opposite  and  dissimilar  pursuit,  took  up  the  law  when  weary  and 
disgusted  with  the  life  of  an  army  officer  in  time  of  peace.  Choate, 
a  New  England  farmer's  son,  came  early  to  the  bar,  after  full  pre- 
paration and  worthily  crowned  with  academic  and  collegiate  hon- 
ors. Erskine  never  became  a  scholar,  and  was  never  distinguished 
for  learning  in  the  law  or  wide  reading  of  literature.  Choate,  in 
all  his  subsequent  career,  was  a  laborious  student  and  undoubtedly 
ranked  higher  in  legal  and  general  learning  than  any  other  advo- 
cate of  his  time.  In  the  work  which  these  men  did  at  the  bar  the 
same  contrast  is  presented.  It  happened  to  Erskine  to  be  employed 
in  a  remarkable  succession  of  great  state  trials  in  which  he  became 
the  advocate  of  the  rights  and  liberty  of  the  citizen  against  public 
despotism,  and  in  giving  the  death  blow  to  the  doctrine  of  con- 
structive treason  and  vindicating  the  right  of  free  speech  and  a 
free  press,  he  performed  the  noblest  service  to  the  law  and  the  free 
constitution  of  the  empire  and  won  unfading  and  immortal  forensic 
honors.  Choate,  on  the  contrary,  was  never  privileged  to  argue  a 
single  case  of  great  public  political  importance,  but  was  compelled 
to  use  his  vast  and  varied  powers  in  questions  of  mere  private 
interest  and  dispute — a  circumstance  which,  in  his  last  days,  he 
recalled  with  pathetic  regret. 

So  in  the  splendid  and  unequaled  gifts  which  each  brought  to 
the  bar  they  were  still  dissimilar.  Erskine,  who  commanded  the 
higher  power  and  the  better  art,  spoke  with  singularly  clear 
and  felicitous  language,  in  sentences  short  and  rich  with  beauty 
and  strong  with  logic,  and  not  unworthy  of  the  great  models  of 
English  speech  which  he  found  and  studied  in  Shakespeare,  Milton 
and  Burke.  Choate,  whose  learning  was  deeper  and  whose  vocabu- 
lary was  wider  and  ampler,  spoke  in  sentences  of  remarkable  length 
and  resounding  sweep  and  rhythm,  and  astonished  all  by  the  amaz- 
ing afflnence  and  gorgeousness  of  his  diction.  Both  were  men  of 


188  MODERN  JURY  TRIALS. 

high  imagination,  but  while  Choate  was  more  poetical  and  subtle 
in  his  fancy,  Erskine  was  more  vivid,  intense  and  practical. 
Choate  dazzled  and  overwhelmed  a  jury;  Erskine  swept  and  mas- 
tered them.  Choate  more  resembled  Cicero,  who  was  a  rhetorician 
as  well  as  an  orator,  while  Erskine  was  more  like  Demosthenes, 
who  was  the  greater  master  of  true  eloquence. 

In  their  personal  appearance  and  outward  manner,  also,  these 
great  advocates  were  widely  different.  Erskine  was  fresh  and 
buoyant,  full  of  vivacity  and  of  fine  and  engaging  presence  ; 
Choate  was  angular  and  almost  ungainly  of  form,  of  pale  and  hag- 
gard countenance,  and  with  only  the  divine  genius  looking  out 
from  his  deep  and  burning  eyes  to  distinguish  him  from  an  ordi- 
nary man.  Possibly  this  may  account  for  the  fact  that  Erskine 
was  full  of  personal  vanity,  while  Choate  was  singularly  modest 
and  unenvious. 

But  in  the  midst  of  these  many  contrasts,  one  great  and  striking 
parallel  stands  out  in  their  public  careers.  Each  left  the  bar  tor  a 
brief  season  for  service  in  a  legislative  assembly,  the  one  in  the 
British  House  of  Commons,  and  the  other  in  the  Senate  of  the 
American  Congress.  Each  wearied  and  failed  in  the  new  and 
uncongenial  place;  and  stranger  coincidence  still — each  met  and 
quailed  before  a  great  parliamentary  leader — Erskine  before  the 
imperious  orator  and  statesman,  William  Pitt,  son  of  the  great 
commoner  of  England,  and  Choate  before  another  proud  and  arro- 
gant parliamentary  chieftain,  Henry  Clay,  the  great  commoner  of 
America. 

Returning  now  to  the  bar  and  the  courts,  after  their  legislative 
failures,  the  old  contrast  stands  out  again  in  their  lives,  even  to  the 
very  close.  Erskine  went  upon  the  Chancellor's  woolsack,  for  a 
brief  period,  and  then  retired  at  fifty-seven  from  the  bar  and  the 
courts.  Choate  returned  from  the  senate  to  the  bar  while  yet  in 
his  early  prime,  and  gave  thereafter  his  best  powers  and  most  bril- 
liant efforts  to  his  profession.  Erskine  died  at  seventy-three,  after 
a  long,  sad  evening  to  his  life,  in  which  he  missed  the  old  excite- 
ment of  the  courts  and  found  no  compensation  in  the  love  of 
books,  that  sweet  solace  of  cultivated  old  age.  Choate  broke  down 
suddenly  at  sixty,  while  yet  in  full  practice,  his  nerves  shattered 
by  the  long  contentions  of  the  forum;  dying  prematurely,  and 
missing  what  he  had  so  longed  to  enjoy — a  peaceful  and  restful 
evening  to  his  stormy  and  laborious  life,  when  he  could  forget  the 
fiery  encounters  of  the  bar  in  the  sweet  studies  and  unfailing 
delights  of  the  books  he  loved  so  well.  And  so  in  death  the  great 
advocates  present  their  last  sad  contrast,  as  each  missed  the  closing 


TRIAL  BY  JURY.  189 

felicity  of  his  life — the  one  in  living  too  long,  the  other  in  dying 
too  soon. 

CONCLUSION. 

Thus  all  too  briefly  and  imperfectly  have  I  sketched  this  great 
institution  of  the  trial  by  jury,  and,  as  I  turn  away  from  the  theme 
I  deeply  realize  how  much  is  left  unsaid.  The  greatness  of  the  sub- 
ject has  embarrassed  and  oppressed  me.  In  considering  it,  our 
minds  run  back  through  many  stormy  scenes  of  English  history, 
through  many  great  political  changes  and  revolutions,  to  the  early 
and  memorable  days  when  the  foundations  of  constitutional  free- 
dom were  laid  in  England  by  the  first  successors  of  the  conqueror. 
Then  and  there  was  begun  to  be  builded  the  grand  and  majestic  edi- 
fice of  the  common  law,  and  into  its  solid  masonry  was  wrought  the 
trial  by  jury.  There  let  it  remain  so  long  as  the  magnificent  struc- 
ture shall  stand. 

It  has  been  a  glory  and  a  boon  to  England ;  it  is  and  will  be  a 
blessing  and  a  glory  to  us.  No  man  can  safely  predict  what  our 
national  future  will  be.  The  events  of  our  recent  history  have  dis- 
turbed that  easy  and  boasted  confidence  in  our  institutions  and  our 
future  that  once  prevailed.  I  invoke  no  spectres  to  rise  in  our 
national  pathway;  I  cast  no  horoscope  of  coming  ills,  but  whatever 
the  future,  whether  cloudless  and  serene  or  stormy  and  tempestu- 
ous, it  will  be  well  to  hold  on  to  the  trial  by  jury.  We  may  never 
have  tyrants,  we  may  never  have  Caesars,  but  if  we  should  have 
them  they  will  seek  to  accomplish  the  downfall  of  free  government, 
not  by  directly  overriding  the  constitution,  but  by  using  the  forms 
of  law  to  strangle  and  subvert  its  spirit.  No  central  despotism,  no 
rule  of  monied  or  political  monopolies  can  successfully  control  for 
tyrannical  or  sordid  purposes  an  institution  which  derives  its  life 
and  power  from  the  great,  honest  masses  of  the  people.  A  nd  here 
will  be  our  safety. 

For  the  jury  system  is  the  handmaid  of  freedom.  It  catches 
and  takes  on  the  spirit  of  liberty,  and  grows  and  expands  with  the 
progress  of  constitutional  government.  In  England,  in  the  seven- 
teenth century,  under  the  tyranny  of  the  Stuarts,  a  jury  at  the 
instance  of  a  cowardly  and  despotic  king,  sent  the  noble  Russell 
and  the  brave  Sidney  to  the  block  for  constructive  treason.  A 
hundred  years  later,  an  English  jury  acquitted  Lord  Gordon,  and 
Hardy,  and  Home  Tooke  and  Thelwell,  on  the  same  charge, 
although  pressed  by  the  whole  power  of  king  and  government;  and 
a  little  later  still,  not  all  the  influence  of  the  ministry,  though  aided 
by  the  savage  energy  of  a  chief  justice  of  England,  could  wring 


190  MODERN  JURY  TRIALS. 

from  an  honest  and  fearless  English  jury,  an  unjust  verdict  against 
a  poor  and  humble  private  citizen,  who,  all  unaided  by  counsel,  con- 
ducted his  own  defense. 

No;  civil  liberty  cannot  dispense  with  any  of  her  armaments. 
She  needs  them  all  to  battle  with  tyranny  and  oppression.  Trial 
by  jury  is  one  of  the  chiefest  of  these.  The  noble  panegyric  which 
Blackstone  pronounced  upon  it  in  his  immortal  commentaries  is 
well  deserved,  and  if  it  be  true,  as  he  suggests,  that  possibly  Rome, 
Sparta  and  Carthage  fell  because  they  did  not  know  it,  let  not 
England  and  America  fall  because  they  threw  it  away. 


PIERCE  WILL  CASE. 

Speech  of  Hon.  CHA&  8.  MAY,  at  Ealamazoo,  February,  1876. 

One  of  the  most  important,  as  well  as  one  of  the  most  interest- 
ing, civil  cases  ever  tried  in  the  State  of  Michigan,  was  the  Pierce 
Will  Case  of  Kalamazoo  county.  The  large  amount  of  money  con- 
tested for,  the  great  number  of  witnesses  examined,  and  the  pecu- 
liar and  semi-tragic  nature  of  the  facts,  all  combined  to  awake  in 
the  public  mind  more  than  the  interest  usually  created  by  trials  in 
court. 

The  case  was  tried  twice.  The  first  trial  occurred  in  June,  1875 
and  resulted  in  a  disagreement  of  the  jury — eight  favoring  the 
contestants  and  four  sustaining  the  will.  The  second  trial  began 
February  12th,  and  concluded  March  1st,  1876,  with  a  verdict  for 
the  contestants.  There  were  one  hundred  and  fifty  witnesses 
sworn  in  the  case,  being  fifty  more  than  were  sworn  in  the  cele- 
brated Vanderpool  trial,  and  thirty-seven  more  than  in  the  case  of 
Tllton  v.  Beecher.  The  jury  were  out  twenty-six  hours,  and  what 
is  worthy  of  note,  rendered  their  verdict  upon  the  twenty-third 
anniversary  of  the  day  upon  which  the  first  wife  was  turned  away. 

If  there  is  a  scene  to  move  and  touch  the  tender  heart-chords  of 
a  jury  more  than  the  destruction  of  a  pioneer's  home — the  putting 
away  of  a  tried  and  faithful  wife  and  mother  in  her  old  age,  the 
"  over  the  hill  to  the  poor  house,"  more  intensified  than  in  this 
trial,  I  have  not  seen  it  or  read  of  it.  The  masterly  arrangement 
of  these  exciting  scenes  is  in  itself  eloquent.  The  ingenuity  of 


PIERCE  WILL  CASE.  191 

counsel  is  in  the  simplicity  of  his  statements;  holding  the  clear 
mirror  up  to  nature,  which  reflects  the  sad  condition  of  a  home  in 
ruins. 

"  When  Mr.  Buck  closed,  a  dense  crowd  had  filled  the  court  room, 
all  anxious  to  hear  Hon.  Chas.  S.  May,  who  was  to  make  the  main 
argument  for  the  contestants,  and  who,  it  was  expected,  would  be 
more  eloquent  than  ever  before  in  a  jury  case. 

"  It  was  a  scene  long  to  be  remembered  in  the  history  of  the  court. 
In  the  audience  were  large  numbers  of  ladies,  and  when  Mr.  May 
rose  at  the  close  of  the  short  intermission,  a  silence  prevaded  the 
room,  which  was  the  forerunner  of  the  rapt  attention  he  received 
during  the  four  hours  which  he  spoke. 

"  He  was  pale,  anxious  and  earnest.  Each  listener  leaned  forward 
to  catch  his  opening  sentences.  He  began  slowly  and  calmly. 
But  soon  rousing  with  his  subject  he  gathered  the  facts  into  logical 
order  and,  clothing  them  in  eloquent  words,  wove  them  into  a 
powerful  argument." 

Personally  Mr.  May  is  an  exceedingly  attractive  speaker — nearly 
forty-five  years  old  and  looking  much  younger;  of  medium  size  and 
height,  keen  eyes,  dark  brown  hair,  light  mustache,  deep,  strong, 
penetrating  voice.  He  speaks  rapidly  and  fluently,  warms  with  his 
subject  to  a  bright  glow  of  oratory,  with  a  peculiar  fire  of  earnest 
and  impressive  delivery  that  is  singularly  effective  with  juries.  To 
hear  him  speaking  in  any  building  draws  one  nearer  and  holds 
one's  attention  with  the  keenest  interest  throughout.  He  has  long 
been  a  leading  advocate  in  Michigan.  He  has  served  as  lieuten- 
ant-governor, has  received  the  vote  of  his  party  for  United  States 
senator,  and  is  very  prominent  as  a  political  orator,  whose  speeches 
attract  unusual  interest.  • 

The  argument  of  Mr.  May  is  of  such  a  graphic  and,  at  times, 
thrilling  character,  as  well  as  tersely  historical,  that  it  furnishes  all 
the  facts  essential  to  a  full  comprehension  of  the  issue  determined 
at  the  trial.  His  positions  were  believed  and  followed  by  the 
jury. 

Mr.  May  said: 

GENTLEMEN  OF  THE  JTJBT — I  cannot  tell  you  how  deeply  I  feel 
the  responsibility  which  now  devolves  upon  me.  As  I  approach 
the  argument  of  this  important  cause  and  think  of  the  interests 
confided  to  me,  and  how  much  may  possibly  depend  upon  what  I 
may  say  to  you,  I  am  almost  overwhelmed  with  the  sense  of 


192  MODERN  JURY  TRIAL& 

responsibility.  The  stake  which  these  contestants  have  in  this 
issue  is  a  deep  and  vital  one,  and  as  I  stand  here  now  to  speak  for 
them,  my  mind  goes  back  over  this  testimony  to  those  days  long 
ago,  when  in  summer  heat  and  winter  cold  they  toiled  in  that  eai  ly 
pioneer  home,  in  the  midst  of  privations  and  discouragements,  to 
lay  the  foundation  of  this  ample  fortune  which  is  now  in  contest. 

Gentlemen,  there  has  never  been  in  the  whole  history  of  this 
court  so  important  a  civil  cause  tried  before  a  jury  of  this  county. 
This  is  true,  whether  we  consider  the  amount  at  issue,  or  the  intrin- 
sic character  of  the  facts.  For  this  is  not  only  a  case  involving 
nearly  a  hundred  thousand  dollars  in  money,  but  it  is  one,  also,  of 
deep  and  even  tragic  interest.  It  id,  indeed,  a  powerful  drama 
from  real  life.  Put  upon  any  stage,  these  facts  would  draw  tears 
from  human  eyes  and  stir  all  human  hearts  to  indignation.  Told 
anywhere  under  the  circuit  of  the  sun  to  civilized  men,  they  would 
touch  the  tenderest  chords  of  human  sympathy,  and  even  savage 
breasts  would  be  moved  by  them. 

Gentlemen,  you  have  a  high  duty  to  perform.  Not  often  does 
such  a  duty  devolve  upon  a  jury.  You  may  all  live  long  lives — as 
God  grant  you  may — and  be  honored  and  trusted  by  your  fellow 
citizens,  as  some  of  you  already  have  been,  but  you  will  never  meet 
a  greater  responsibility  than  this.  It  is  my  duty  now  to  speak  for 
these  contestants;  it  is  yours  to  listen  and  weigh  what  I  may  say. 
I  have  often  thought  that  this  great  feature  in  the  administration 
of  justice  was  not  rightly  understood  by  juries  and  the  public.  It 
has  seemed  to  me,  sometimes,  that  juries  and  the  people  at  large 
have  regarded  the  arguments  of  counsel  as  an  infliction  which  th-i 
law  rather  permitted  than  sanctioned,  and  have  therefore  turned 
deaf  ears  to  the  bar.  But  this  is  not  right.  My  standing  before 
you  is  no  idle,  useless  ceremony;  it  is  one  of  the  solemn  institu- 
tions of  the  law,  and  as  I  speak  upon  my  responsibility  as  an  advo- 
cate, it  is  as  much  your  duty  to  listen  to  me  and  to  the  argument 
which  I  shall  make,  as  it  is  that  you  should  listen  to  the  charge  of 
bis  honor,  when  he  shall  come  to  deliver  it.  You  have  been 
patient,  attentive  listeners  to  all  this  testimony  and  all  these  pro- 
ceedings for  nearly  three  weeks,  and  I  know  that  I  shall  have  your 
candid,  patient,  careful  hearing. 

I  have  invoked  such  a  hearing  from  you,  gentlemen,  for  I  wish 
to  appeal  to-day  to  your  reasons,  to  your  judgments,  to  your  under- 
standings. I  wish  to  make  an  argument  to  you — an  argument 
founded  upon  the  facts,  upon  the  law,  upon  logic.  I  wish  to 
indulge  in  no  tricks  of  speech.  The  warning  of  the  counsel  was 
entirely  unnecessary.  I  shall  not  be  betrayed  into  leaving  the 


PIERCE  WILL  CASE.  193 

solid  ground  of  my  argument  to  gather  any  useless  flowers  of 
rhetoric,  or  to  indulge  in  any  unwarranted  appeals  to  your 
sympathy.  But  it  will  not  be  the  misfortune  of  my  clients  in  this 
cause,  if  I  shall,  build  a  highway  of  reason  and  logic,  over  which 
the  sympathies  which  I  know  fill  all  your  hearts  may  be  carried  to 
a  verdict  for  these  contestants.  Happy  is  that  cause  where  no  vio- 
lence needs  be  done  to  the  better  feelings  of  our  nature,  but  where 
the  lines  of  sympathy  run  parallel  with  those  of  reason  and  of 
duty. 

THE   MAIN   QUESTION. 

Gentlemen,  the  main  question  which  we  have  here  to  try  and 
decide — the  question  which  involves  all  the  others,  is  this  :  Is  this 
paper  which  has  been  offered  in  evidence  by  the  proponents  the 
last  will  and  testament  of  Isaac  Pierce  f  In  other  words,  is  this  a 
valid  will  ? 

Now,  there  are  two  broad  grounds  on  which  we  attack  the  valid- 
ity of  this  will.  Though  Isaac  Pierce  signed  this  paper  with  his 
own  hand,  though  it  has  all  legal  and  due  formality,  we  say  it  is 
not  his  will  in  the  law  if,  at  the  time  of  its  pretended  execution,  he 
was  either  not  in  his  right  mind,  or  was  under  the  undue  influence 
of  another.  These  grounds  are  entirely  independent  of  each  other 
— either  is  sufficient  to  set  aside  the  will,  and  on  the  question  of 
mental  capacity  the  court  will  instruct  you  that  the  burden  of 
proof  is  upon  the  proponents  who  offer  this  will.  *  *  * 

[A  strong  statement  of  mental  unsoundness,  sickness,  old  age 
and  accidents,  detailed  and  examined.  The  story  of  an  early 
pioneer  and  his  struggle  with  the  great  battle  in  the  wilderness, 
which  is  familiar  to  all  early  settlers  in  any  State. 

Counsel  argues  at  length  on  the  theory  of  mental  weakness  from 
long  habits  of  intoxication;  of  being  lifted  from  his  (Pierce's)  wagon 
in  a  state  of  unconscious  stupor;  dwells  upon  the  demented  condition 
of  the  mind  from  such  causes;  shows  his  anger  and  remorse,  his 
exclamations  of  pain  and  long  suffering,  and  comes  to  the  consider- 
ation of  undue  influence  and  incapacity  to  make  a  valid  will.] 

And  now  I  come,  gentlemen,  to  discuss  more  clearly  the  rela- 
tions of  this  woman,  Emeline,  to  these  facts.  She  is  the  woman  in 
the  case;  and  not  the  first  one,  either,  who  has  figured  in  cases  like 
this  and  been  accused  of  exercising  undue  influence  over  men. 
Such  cases  and  instances  are  very  common  in  the  courts.  They 
are,  indeed,  of  longer  standing  than  the  courts;  they  are  as  old  as 
13 


194  MODERN  JURY  TRIALa 

human  nature  itself ;  for  I  do  not  forget  that,  according  to  the 
sacred  legend,  it  was  the  first  woman  who  unduly  influenced  the 
first  man  to  eat  the  forbidden  fruit. 

I  am  to  show  you  here  the  powerful  influence  of  an  artful  and 
designing  woman  over  a  man  of  rough  nature  and  strong  passions 
— a  woman  twenty  years  younger  than  the  man,  and  first  securing 
her  influence  over  him  through  the  unlawful  gratification  of  his 
strong  and  unregulated  passions. 

HISTOBIC   INSTANCES — THE   MISTRESSES   OP  KINGS. 

Is  there  any  inherent  improbability  in  such  a  case  ?  Why,  gen- 
tlemen, history  is  full  of  instances  like  this — instances  where  great 
monarchs  and  rulers  of  men  have  fallen,  through  the  same  source 
of  human  weakness,  under  the  influence  and  control  of  the  other 
sex.  Who  has  not  heard  of  the  mistresses  of  kings  and  the  part 
they  have  played  in  the  history  of  the  world?  Louis  XFV,  of 
France,  was  called  "  The  Grand  Monarch,"'  and  "  Louis  the  Great," 
so  splendid  was  his  long  reign  and  so  powerful  was  he  among  the 
sovereigns  of  the  world  ;  and  yet,  though  this  man  was  an  absolute 
monarch  over  France  and  dictated  law  to  all  Europe,  sending  out 
his  great  marshals  and  armies  to  victorious  fields  of  conquest,  and 
ruling  in  his  cabinet  with  arbitrary  and  autocratic  will,  he  himself 
was  conquered  by  the  charms  and  blandishments  of  a  solitary 
woman — a  woman  without  royal  blood,  a  butcher's  daughter,  who 
ever  after,  until  the  day  of  his  death,  exercised  supreme  influence 
over  him,  dictating  war  and  peace — even  compelling  him  in  the 
interest  of  her  religious  fanaticism  to  revoke  that  royal  edict  of 
Nantes,  and  let  slip  the  dogs  of  religious  persecution,  deluging  a 
whole  region  in  innocent  blood. 

I  could  give  you  many  more  signal  instances  of  this  kind.  The 
very  next  successor  of  this  great  king  of  whom  I  have  spoken,  the 
next  Louis  in  that  long  line,  had  his  Pompadour,  as  the  other  his 
Maintenon — another  woman  from  humble  life,  who  ruled  the  ruler 
of  the  nation  with  an  artful  and  unbending  will.  And  there  was 
the  English  Charles  n,  with  his  famous  mistress,  and  in  our  recent 
times  the  wayward  and  romantic  Lola  Montez,  the  dancing  girl 
who  came  to  rule  the  king  in  a  European  court.  Shakespeare,  who 
has  illustrated  all  human  nature  and  passion,  has  drawn  a  powerful 
picture  of  woman's  influence  in  his  Lady  Macbeth,  who  urging  her 
guilty  but  hesitating  lord  to  the  terrible  deed  of  blood,  says  to 
him — 

"Only  look  up  clear; 
To  alter  faror  ever  is  to  fear; 
LeaTe  all  the  rest  to  me." 


PIERCE  WILL  CASE.  196 

Why,  gentlemen,  these  counsel  say  to  you,  that  it  is  impossible 
that  the  wife  of  this  man  could  have  had  this  influence  over  him — 
that  Isaac  Pierce  was  a  self-willed,  strong  man.  A  strong  man ! 
Well,  was  he  stronger  than  Sampson,  who  could  tear  down  the 
gates  of  a  city  ?  And  yet  Sampson,  gentlemen,  was  weak  enough 
when  his  head  reposed  in  the  lap  of  his  Delilah.  So  it  was  with 
Isaac  Pierce.  Rough  and  strong  as  he  was  by  nature,  he  came  at 
last  like  Sampson,  through  the  same  channel  of  influence,  to  obey 
the  will  of  an  artful  and  designing  woman. 

ISAAC    PIERCE    AND    HIS    FAMILY   IN    1852. 

Now,  gentlemen,  let  us  turn  to  this  testimony  and  see  when  and 
how  this  influence  began.  Let  me  take  your  minds  back  to  1852, 
and  show  you  Isaac  Pierce  there  with  his  family  on  the  old  home- 
stead, at  Climax.  Married  to  his  first  wife  in  the  State  of  New 
York,  in  1824,  he  had  removed  with  his  young  family  to  Michigan 
ten  years  later,  and  had  settled  down  upon  his  first  purchase  of 
land  in  the  beautiful  region  where  he  continued  to  live  during  all 
this  history,  for  nearly  forty  years,  until  the  day  of  his  death.  At 
this  time — 1852 — he  had  with  him,  besides  his  wife,  "Aunt  Katy," 
as  she  was  afterwards  called,  six  children,  ranging  in  years  from 
sixteen  up  to  twenty-seven — three  boys  and  three  girls.  He  was 
now  about  fifty  years  of  age,  and  the  possessor  of  eight  hundred 
and  fourteen  acres  of  land — eight  hundred  and  sixty-nine  acres 
being  all  he  owned  at  the  day  of  his  death. 

The  story  of  this  family  had  been  like  the  story  of  other  pioneer 
families  in  this  region,  only  a  little  rougher  and  harder.  They 
began  with  little  and  they  worked  hard,  boys  and  girls  alike— the 
daughters  and  the  mother  frequently  working  in  the  fields  with 
the  men,  and  the  testimony  many  times  shows  us  "Aunt  Katy" 
bringing  with  her  own  hands  the  family  wood  from  the  field  to 
the  house.  "We  all  worked  hard,"  say  these  children  on  the 
stand,  and  so  testify,  also,  all  the  witnesses  who  knew  them  in 
those  early  days.  Isaac  Pierce  at  this  time,  though  a  rough,  aus- 
tere man,  seems  not  to  have  been  an  unkind  father,  and  he  was 
well  disposed  towards  his  family.  Drinking  had  not  got  to  be  so 
settled  a  habit  with  him  and  he  worked  hard  with  the  rest.  He 
had  overcome  all  the  difficulties  of  a  new  country;  had  brought  his 
family  safe  through  all  the  trials  and  dangers  of  that  new  home; 
his  judgment  had  been  good,  his  plans  had  worked  well,  and 
he  was  a  man  now  in  easy  circumstances  and  comparatively  rich 
among  so  many  of  his  less  prosperous  neighbors. 


196  MODERN  JURY  TRIALS. 


THE  BEGINNING  OF  TROUBLE. 

But  a  great  trouble  was  about  to  fall  upon  that  quiet  and  peace- 
ful family.  In  the  late  summer  of  that  same  year  1852,  Isaao 
Pierce  met  this  woman,  then  Mrs.  Emeline  Hadley  and  an  inter- 
esting young  widow,  in  her  mourning  weeds  for  her  husband,  who 
had  suddenly  died  in  the  month  of  July,  in  the  town  of  Penfield, 
in  the  county  of  Calhoun,  which  was  their  home.  She  met  Pierce 
at  Battle  Creek — it  seems  she  knew  him,  at  least  by  reputation, 
before — and  applied  to  him  to  become  administrator  of  her  hus- 
band's estate.  He  seems  to  have  been  struck  with  her  person 
and  her  request,  and  at  once  undertook  the  duty.  And  then  com- 
menced his  relations  and  intercourse  with  her,  destined  to  change 
the  whole  course  and  current  of  his  after  life.  He  began  soon  to 
make  visits  to  Penfield,  which  were  frequently  repeated,  and  we 
catch  a  glimpse  of  him  defending  her  law  suit  at  Battle  Creek. 

SIGNING  THE  SEPARATION  PAPERS. 

Pierce  is  soon  infatuated,  and  nothing  can  now  stand  in  the  way 
of  his  dreadful  purpose.  All  his  ungovernable  passions  are  roused, 
and  he  turns  fiercely  upon  the  wife  of  his  youth  as  an  obstacle  in 
the  way  of  his  new  and  unholy  desires.  You  remember  that  in 
the  solemn  night  time,  the  youngest  child,  Lucinda,  had  heard  her 
father's  voice,  in  high  and  terrible  words,  demanding  that  her 
mother  should  consent  to  a  separation,  and  leave  her  home  and 
children  forever.  At  last  by  the  most  terrible  threats  and  com- 
mands— by  the  use  of  language  too  shocking  and  awful  for  me  to 
repeat,  he  compels  her  to  come  to  Kalamazoo,  where  this  same 
George  Thomas  Clark,  the  adviser  and  tool  of  Pierce,  had  drawn 
up  the  separation  papers  for  her  to  sign.  You  remember  these 
papers,  gentlemen,  with  their  false  and  lying  preamble,  "  Whereas, 
unhappy  difficulties  have  arisen  between  the  said  Isaac  and  his 
wife  Catharine."  What  difficulty  had  she  made  ? 

The  wretched  wife  could  not  at  first  sign  the  papers.  She  took 
the  pen,  officiously  put  into  her  hand  by  Clark,  and  then  burst 
into  tears,  saying  she  could  not  do  it;  "she  could  not  sign  away 
her  home  and  children."  The  superserviceable  Clark  is  ready  to 
urge  her;  to  tell  her  of  his  brother's  case  in  England,  and  how 
that  was  managed.  Pierce  stands  by,  over-awing  her  by  his  pres- 
ence and  by  the  stern  and  unbending  purpose  which  she  sees  writ- 
ten in  his  face.  At  length  she  yields,  takes  the  pen,  signs  her  name 
and  turns  weeping  and  sorrowfully  away.  Then,  with  a  heavy 


PIERCE  WILL  CASE.  197 

and  broken  heart,  she  returns  for  a  brief  season  to  the  home  where 
she  had  worked  so  long  and  endured  so  much  for  her  husband  and 
her  children. 

It  was  in  the  month  of  November  that  Pierce  brought  Mrs.  Had- 
ley  into  his  family  at  Climax.  Up  to  this  time,  these  children  tell 
you,  Isaac  Pierce  had  lived  peaceably  and  pleasantly  enough  with 
his  wife.  But  a  terrible  domestic  cloud  had  now  begun  to  gather. 
Quarrels  and  high  words  began  to  be  heard  by  the  affrighted 
children  between  the  father  and  mother.  Pierce  leaves  his  wife's 
bed;  he  makes  no  conversation  with  her;  he  does  not  treat  her 
any  longer  as  his  wife,  but  installs  Mrs.  Hadley  at  the  head  of  the 
table,  and  is  even  found  in  the  night  time  sharing  her  room  and  bed. 
Aunt  Katy  passes  around  uncomplaining,  but  sad,  and  frequently 
in  tears. 

THE  CULMINATION  OP  THE  TRAGEDY. 

Finally  the  awful  climax  of  her  troubles  comes — the  day  of  fate 
and  doom  to  this  poor  woman,  when  she  is  sent  away  forever  from 
her  home;  taken  away  by  the  orders  of  this  infatuated  and  infuri- 
ated man,  who  had  once  solemnly  sworn  at  the  altar  to  love  and 
cherish  her;  taken  with  a  few  cheap  and  humble  articles  of  house- 
hold furniture  and  sent,  by  a  back  way,  over  the  hill  to  the  little 
log  house  in  the  hollow  which  was  to  be  her  future  abode;  taken 
while  protesting  and  crying  out  in  the  agony  of  her  soul  that  she 
could  not  go — that  she  could  not  thus  leave  the  home  she  had 
worked  so  hard  to  make,  and  the  children  she  had  nourished  and 
loved. 

How  can  I  picture  to  you  that  scene  of  domestic  desolation  and 
ruin — that  terrible  scene  of  a  wife's  dethronement  and  banishment  ? 
Gentlemen,  I  have  heard  the  great  actors  and  tragedians  of  this 
generation  who  tread  the  mimic  stage  and  thrill  and  melt  excited 
thousands  with  their  delineations  of  human  sorrow  and  passion, 
but  I  have  heard  from  the  lips  of  Lucinda  Milliman,  on  that  wit- 
ness stand,  the  story  of  a  real  tragedy  in  humble  life,  more 
pathetic  and  powerful  than  any  imagined  grief  of  kings  or  queens, 
or  any  catastrophe  whatever  of  human  greatness.  That  agonized 
wife  and  mother  in  the  midst  of  her  weeping  children;  her  tearful 
protestations  and  pleadings — the  demoniac  husband  and  father 
standing  by,  lost  now  to  all  feelings  of  gratitude  and  pity,  and 
hurrying  up  the  cruel  preparations  for  her  departure — oh  !  gentle- 
men, it  was  a  spectacle  to  make  the  blessed  angels  weep  !  Well 
might  the  wretched  mother  have  cried  out  in  the  homely  but 
pathetic  language  of  Michigan's  own  poet : 


198  MODERN  JURY  TRIALS. 

"  Orer  the  hill  to  the  poor-house — my  children  dear,  good-by ; 
Many  a  night  I've  watched  you  when  only  God  was  nigh  ; 
And  God  will  judge  between  us;  but  I  shall  ever  pray 
That  you  may  never  suffer  the  half  of  what  I  do  to-day." 

Gentlemen,  a  scene  like  this  must  melt  and  move  all  human 
hearts.  It  brings  to  our  minds  that  other  scene  enacted  upon  a 
royal  stage,  between  crowned  heads,  over  which  the  world  has 
hung  and  wept  for  years,  where  a  great  Emperor  put  away  the 
wife  of  his  youth — the  wife  who  had  loved  him  and  helped  to  place 
him  on  his  throne.  That  separation  and  banishment  have  come  to 
be  one  of  the  touching  stories  and  tragedies  of  history;  but  human 
nature  is  the  same  in  farm  house  and  palace,  and  this  tragedy  in 
humble  life  appeals  as  spontaneously  and  powerfully  to  the  deepest 
and  tenderest  sympathies  of  all  our  hearts.  How  overmastering 
must  have  been  the  influence  to  drive  this  man  to  such  a  crime; 
how  cool  and  calculating  the  disposition  of  this  woman,  Emeline, 
who  could  look  calmly  on  and  witness  it !  I  turn  to  you  now  and 
ask  you  this  all-important  question  :  If  this  woman  who  sits  here 
could  make  Isaac  Pierce  do  such  a  deed  as  this  in  the  day  of  his 
strength  and  prime,  could  she  not  influence  him  in  the  day  of  his 
weakness  and  decline  to  make  this  will  ? 

Gentlemen,  this  was  a  horrid  piece  of  business — blasting  and 
withering  to  the  good  name  of  the  living  and  the  dead  alike.  And 
yet  I  have  heard  here  a  wretched  plea  in  defense  of  it — a  plea  put 
forth  by  this  guilty  party  to  it — the  plea  that  the  banished  wife 
was  not  neat  and  tidy  in  the  management  of  her  household  !  God 
of  mercy  !  what  a  defense  is  this  !  Was  it  not  enough  for  this 
poor  old  woman  to  suffer,  to  be  exiled  and  driven  from  her  home, 
to  be  crushed  and  outraged  in  her  deepest  affections,  to  have  her 
life  blasted  by  this  great  grief  ?  Was  not  her  cup  already  full  ? 
Did  it  need  that  this  insult  should  be  added  to  all  the  rest  before 
she  dies?  And  what  do  you  think,  gentleman,  of  that  disposition 
which  prompted  such  a  plea  as  this  ?  "  Aunt  Katy  worked  hard  " 
— "  she  labored  faithfully  for  her  husband  and  children  " — "  she 
backed  the  wood  up  to  the  house  " — "  she  did  the  best  she  could." 
That  is  what  the  witnesses  say. 

"She  did  as  well  as  she  could,"  reluctantly  says  one  of  the  wit- 
nesses who  comes  here  to  heap  this  insult  upon  her  old,  gray  head. 
Who  could  do  better  than  that  ?  And  was  Isaac  Pierce,  from  this 
testimony,  the  man  to  complain  of  untidiness  in  his  wife  ?  Gentle- 
men, I  dismiss  this  wretched  plea  without  further  words.  The 
proponents  are  welcome  to  all  they  have  made  by  it. 

Gentlemen,  the  influence  of  this  woman  over  Isaac  Pierce  was 


PIERCE  WILL  CASE.  199 

never  broken  during  the  twenty  years  she  lived  with  him.  Once 
having  secured  her  control  over  him  he  was  submissive  and  obedi- 
ent to  her  slightest  wish.  *  *  * 

He  recites  the  testimony  at  great  length,  reading  from  notes  and 
repeating  from  memory,  giving  a  graphic  analysis  of  character, 
appearance,  and  probability  of  their  correctness  of  detail,  and  pro- 
ceeds: 

Now,  gentlemen,  I  think  that  you  will  agree  with  me  that  here 
is  a  very  considerable  mass  of  testimony  tending  to  show  the  pos- 
session of  a  strong  and  powerful  influence  by  this  woman  over  this 
man.  The  question  naturally  arises  now:  Did  she  exert  this  influ- 
ence upon  him  in  order  to  obtain  this  will  ? 

In  the  first  place,  I  ask  you,  gentlemen,  what  would  be  natural 
and  probable  in  such  a  case  ?  Consider  her  situation  and  that  of 
her  children  by  Pierce.  Consider  the  grave  legal  questions  and 
doubts  which  might  arise  in  regard  to  her  true  relations  to  him 
and  to  his  property;  to  the  legality  of  her  marriage;  to  the  legiti- 
macy of  her  children.  Under  such  circumstances  what  would  be 
natural  for  her  to  do  ?  Would  she  not  desire,  above  all  other 
things,  that  Pierce  should  make  his  will  and  thus  settle  these  grave 
questions  and  doubts  forever,  and  confine  the  property  to  her  and 
her  children  ?  Remember,  the  other  wife  was  still  living,  and  her 
children,  these  contestants,  were  all  about  her. 

Why,  gentlemen,  human  nature  itself  answers  these  questions. 
This  woman  could  not  have  been  true  to  her  own  interest  and  to 
the  interests  of  her  children,  if  she  had  not  exerted  her  uttermost 
power  and  influence  to  obtain  a  will  such  as  she  needed  for  her  pro- 
tection. Do  you  believe  her  when  she  swears  that  she  never  spoke 
to  Pierce  in  her  life  about  a  will,  and  did  not  even  know  what  he 
was  coming  to  Kalamazoo  for  when  the  will  was  made  ? 

Gentlemen,  on  this  subject,  it  is  a  most  significant  fact  that  this 
will  is  made  in  the  interest  of  this  woman  and  her  children,  and 
that,  too,  in  the  very  face  of  all  these  declarations  and  expressions 
by  Isaac  Pierce  of  a  contrary  intention.  What  do  you  suppose 
induced  him  thus  to  forget  and  deny  his  own  words,  to  forget  his 
duty  as  a  man  and  a  father,  and  to  disinherit  his  own  blood  ? 
What  power  drove  from  his  mind  the  remembrance  of  these  more 
than  orphaned  children  of  his  unfortunate  daughter,  Mrs.  Parish  ? 
Ah,  gentlemen,  this  is  not  such  a  will  as  he  told  Dr.  Babcock,  on 
what  he  thought  was  his  death-bed,  he  wanted  to  make. 


200  MODERN  JURY  TRIALS. 


"TO  KXKP  PEACE  nr  THE  FAMILY." 

No,  gentlemen,  this  will  was  wrung  from  Isaac  Pierce  in  his  old 
age,  in  his  weakness,  in  his  sickness,  in  his  intoxication,  by  the 
ceaseless  and  persistent  importunity  and  authority  of  this  woman. 
Against  her  oath,  denying  all  this,  saying  she  never  spoke  a 
word  to  him  on  the  subject,  I  put  the  oft  repeated  declarations 
of  Isaac  Pierce  himself ;  I  call  him  from  the  grave  to  confront 
and  impeach  her.  You  will  believe  him  when  he  tells  you  that 
this  will  was  not  his,  but  hers;  that  it  was  made  to  please  her  and 
get  rid  of  her  ceaseless  importunity — "to  keep  peace  in  the 
family." 

How  many  times  did  this  old  man  use  that  expression,  as  he 
complained,  in  the  bitterness  and  sorrow  of  his  heart,  of  his  domes- 
tic troubles  ?  Besides  the  many  other  things  which  he  had  to  do 
"  to  keep  peace  in  the  family,**  was  the  making  of  this  very  wilL 
Your  have  seen  how,  for  this  purpose  of  keeping  peace,  as  he  him- 
self said,  he  wanted  his  son  Loren  to  pay  him  the  thousand  dollars 
for  the  land,  telling  him  he  would  pay  it  back  to  him;  how,  accord- 
ing to  the  testimony  of  the  venerable  Moses  Hodgman,  he  exacted 
the  mortgage  from  Milliman  and  his  daughter,  privately  assuring 
them  that  they  would  never  need  to  pay  it;  how  he  took  the  'note 
from  his  other  son-in-law,  Clark,  telling  him  it  did  not  need  to  be 
stamped,  as  he  only  wished  it  to  satisfy  his  wife.  In  all  these 
instances  he  used  this  same  expression,  "  to  keep  peace  in  the  fam- 
ily.** But,  more  than  all  this,  he  told  John  Christol,  in  May,  1871, 
that  he  had  got  to  make  a  will  to  suit  his  wife — "  to  keep  peace  in 
the  family."  He  told  Ephraim  Bonner,  in  the  month  following, 
that- he  was  going  to  make  a  will  to  suit  Mrs.  Pierce  aud  "  to  keep 
peace  in  the  family.**  And,  finally,  on  the  evening  of  that  very 
twenty-ninth  day  of  July,  when  returning  from  Kalamazoo,  he  told 
George  Whiting,  at  Galesburg,  that  he  had  been  to  town  doing 
some  business  "  to  keep  peace  in  the  family,  "  that  he  had  "  signed 
the  death  warrant  of  his  first  wife  and  children.**  How  significant 
and  impressive  is  such  testimony  as  this  ! 

Again  I  ask  you,  gentlemen,  can  you  doubt  that  it  was  the 
influence  of  this  woman,  her  importunity,  her  demands,  her  author- 
ity and  control  which  induced  and  coerced  this  weak  and  worn  out 
old  man  to  make  this  will  ?  She  was  twenty  years  younger  than 
he;  in  the  full  vigor  of  her  prime — a  keen,  artful,  self-poised  and 
calculating  woman,  as  her  whole  appearance  on  this  trial  abund- 
antly shows.  She  was  just  the  woman  to  hold  with  a  steady  and 


PIERCE  WILL  CASE.  201 

iron  grasp  the  power  which,  long  before,  she  had  acquired  over 
this  man. 

1TO  BATIFICATION  OF  THE  WILL. 

Need  I  say  to  you,  gentlemen,  that  this  will,  once  made  under 
these  circumstances,  could  never  be  ratified  by  Isaac  Pierce.  I 
know  the  counsel  on  the  other  side  have  made  this  point,  and  they 
will  ask  the  court  to  charge  you  that  you  may  find  a  ratification 
of  this  will  by  Pierce,  no  matter  under  what  circumstances  it  was 
made. 

Now,  I  take  issue  with  the  gentleman,  most  decidedly,  on  this 
question,  and  I  say  in  the  first  place,  that,  as  a  matter  of  law,  there 
could  be  no  such  thing  as  a  ratification  in  this  case.  And,  for  the 
simple  reason  that  if  this  paper  was  signed  by  Isaac  Pierce  when 
not  in  his  right  mind,  or  when  intoxicated,  or  when  under  the 
influence  of  another,  then  it  was  not  his  act  in  the  law,  it  was  not 
his  will,  but  was  void,  and  of  no  effect  whatever.  It  is  void,  in 
such  case,  because  there  is  no  consenting  mind  or  will.  Certainly, 
I  must  be  right  in  saying,  that  if  this  man  signed  the  paper  when 
his  reason  was  dethroned,  or  when  his  mental  faculties  were 
drowned  in  liquor,  and  when  he  had  no  such  sound  mind  and  mem- 
ory as  the  law  requires,  that  then  his  act  was  void,  and  being  void, 
that  the  law,  and  reason,  and  common  sense,  all  would  unite  that 
he  could  not  afterward,  by  anything  he  might  say,  give  any  effect 
to  that  which  was  wholly  without  effect  and  worthless  in  the  begin- 
ning. The  law  is  always  founded  upon  reason  and  common  sense. 
A  man  may  ratify  an  act  which  he  does  while  under  some  legal 
disability;  as,  for  instance,  a  contract  made  before  he  was  twenty- 
one  years  of  age;  but  he  can  never  ratify  that  which  he  never  did. 
In  other  words,  in  all  cases  of  what  the  law  calls  ratification,  it 
is  always  supposed  that  the  act  was  an  intelligent  and  conscious 
one,  and  that  the  disability  was  only  from  the  outside.  So  I  say 
that  here  there  is  no  question  of  ratification  at  all.  It  is  a  mis- 
nomer and  an  anomaly  to  say  that  there  can  be  any  such  thing  as 
the  ratification  of  a  void  will. 

But  if  it  be  urged  that  Pierce  could  ratify  the  will  if  it  was  sim- 
ply made  while  under  undue  influence,  then  to  this,  in  the  second 
place,  I  reply  that,  as  a  matter  of  fact,  the  testimony  shows  that  the 
influence  of  this  woman  was  a  continuing  influence;  that  it  remained 
and  was  never  broken  while  this  man  lived.  So  the  answer  is  com- 
plete and  as  broad  as  the  proposition.  For,  if  the  influence  was  so 
great  as  to  be  undue  in  law  at  the  time  when  the  will  was  made, 
then,  before  he  could  ratify  the  act  of  making  it,  he  must  be 


202  MODERN  JURY  TRIALS. 

shown  to  have  escaped  or  recovered  from  this  influence,  and  to  b« 
in  a  situation  where  he  could  speak  his  own  mind  and  exercise 
his  own  free  will.  When,  I  ask  you,  is  this  time  proved  to  have 
been  ? 

But,  gentlemen,  the  court  will  tell  you  that  there  can  be  no  such 
thing  as  a  ratification  of  this  will,  that  it  must  stand  or  fall  upon 
the  man's  condition  at  the  time  it  was  made,  and  that  nothing  he 
could  afterwards  say  or  do  would  breathe  the  breath  of  life  into 
this  paper,  if,  at  this  time  Isaac  Pierce  was  not  in  the  possession 
of  a  sound  mind  and  memory,  or  was  unable  to  exercise  his  own 
free  wilL  Something  cannot  be  made  out  of  nothing;  nor  can  so 
solemn  and  important  a  paper  as  a  man's  last  will  and  testament, 
which  the  law  requires  to  be  in  writing,  and  duly  and  formally 
declared,  attested,  signed  and  sealed,  be  revived  from  legal  disabil- 
ity or  death  by  a  mere  informal  or  casual  verbal  acknowledgment, 
made  in  reckless,  blasphemous,  or  drunken  speech. 

THE   WELL   UNKATTTRAI,   AND    UNJUST. 

Gentlemen,  there  is  still  left  one  great  test  or  principle  to  apply 
to  this  will  in  order  to  see  whether  it  be  the  solemn  and  deliberate 
act  of  the  testator — and  that  is  the  test  of  its  humanity  and  its 
justice.  I  know  a  man  has  a  right,  under  the  law,  to  make  an 
unjust  will,  but  I  know,  too,  that  when  the  question  is  whether  he 
has  made  a  will,  and  that  question  be  at  all  in  doubt,  you  may  look 
into  the  provisions  of  the  instrument  itself  to  see  whether  they  be 
contrary  to  natural  justice,  so  that  it  may  be  determined  whether 
the  man  would  be  likely  to  make  such  a  disposition  of  his  property. 
A  will  that  is  inhuman  and  unnatural  is  at  the  same  time  unreason- 
able, irrational  and  improbable. 

I  have  therefore,  gentlemen,  the  right  to  urge  this  consideration 
upon  you  and  to  ask  you  to  look  to  this  question  of  justice.  Need 
I  take  one  moment  to  show  that  this  will  is  grossly  unjust  ?  Here 
are  these  children  by  the  first  wife,  this  man's  first  children,  who 
helped  him  to  accumulate  this  property,  practically  disinherited, 
their  mother  turned  out  of  doors,  while  this  woman  Emeline,  the 
tempter  and  destroyer  of  this  home,  and  her  children,  who  have 
never  earned  or  added  anything  to  the  estate,  are  given  everything. 
Why  should  Isaac  Pierce  thus  forget  these  older  children  ?  They 
had  worked  hard  for  him;  they  were  poor  and  needed  assistance  as 
he  well  knew,  and  he  had  no  feeling  against  them.  Why  should 
he  cut  them  off  in  their  poverty? 

Why,  gentlemen,  all  this  evidence  shows  that  these  contestants 
had  been  most  generous  and  forbearing  in  their  conduct  towards 


PIE11CE  WILL  CASE.  203 

their  father.  They  had  always  been  respectful  to  him — even  when 
his  life  had  been  such  as  not  to  command  respect  from  the  world  ; 
they  had  been  kind  and  attentive  to  him  when  suffering  from 
accidents  or  sickness;  and  finally  they  exercised  a  degree  of  for- 
bearance when  their  mother  was  sent  away  which  seems,  at  first 
view,  almost  shocking  to  our  human  sympathies.  The  counsel  has 
dwelt  upon  the  fact  that  some  of  these  contestants  assisted  their 
father  in  procuring  the  Indiana  divorce  from  their  mother.  They 
did  this,  no  doubt,  thinking  it  was  better  than  the  open  shame  and 
danger  of  his  living  in  adultery  with  this  woman  in  the  midst  of  a 
community  excited  and  threatening  a  prosecution;  but  without  this 
plain  and  perhaps  sufficient  motive  which  I  can  plead  in  their 
excuse,  the  fact  remains  that  they  rendered  a  much  needed  service 
to  their  father. 

Why  should  Isaac  Pierce  forget  all  this  when  he  came  to  make 
his  will?  And  there  was  his  poor,  unfortunate  daughter  in  the 
asylum,  and  her  helpless  and  more  than  orphaned  children  whom 
he  loved  and  whom  he  told  Dr.  Babcock  he  intended  to  provide  for. 
Why  should  he  forget  them?  Ah!  gentlemen,  these  questions 
cannot  be  answered  satisfactorily  on  any  ordinary  principles  of 
human  nature  or  natural  affection.  He  could  not  have  forgotten 
these  claims  upon  his  bounty  and  his  gratitude  if  he  had  been  in 
his  right  mind  or  in  the  free  exercise  of  his  will. 

O  1  it  needed  all  the  audacity  of  the  counsel  to  say  that  this  will 
was  just.  Gentlemen,  the  argument  is  an  insult  alike  to  your 
reason  and  your  humanity.  If  this  be  a  just  will,  then  where  can 
one  be  found  which  is  unjust?  If  this  be  a  humane  and  a  natural 
will,  then  where  can  be  found  a  will  which  is  inhuman  and 
unnatural?  Look,  gentlemen,  at  these  opposing  parties  before 
you.  Here,  on  the  one  side,  are  these  contestants,  the  first  children 
of  Isaac  Pierce — the  poorly  clad  and  hard-working  boys  and  girls 
of  that  early,  desolate  home — now  past  middle  life,  some  of  them 
verging  towards  old  age — browned  and  bent  by  toil,  in  rusty  and 
homely  garb,  still  hard-working  and  poor;  cheated  and  deprived 
of  their  just  inheritance,  which  now  they  so  much  need,  by  this 
relentless  and  grasping  woman  who  brought  calamity  and  sorrow 
into  their  father's  household.  There,  on  the  other  side,  sits  the 
author  of  all  this  trouble,  surrounded  by  her  daughters,  tho  later 
children  of  Isaac  Pierce,  dressed  in  all  modern  extravagance  and 
finery — gay,  frivolous,  useless,  modern  young  women,  reared  in 
luxury  and  educated  at  boarding  schools.  Tell  me,  which  of  these 
twain  have  earned  the  right  to  enjoy  this  property  ? 


204  MODERN  JURY  TRIALS. 


CONCLUSION. 

Gentlemen,  this  man  violated  the  physical  and  the  moral  law 
alike;  and  he  reaped  the  terrible  penalty.  For  that  great  wrong 
to  the  wife  of  his  youth  his  remorse  was  keen  and  lasting.  It 
breaks  out  here  and  there,  frequently,  through  the  testimony. 
How  touching  and  overwhelming  was  that  incident  related  by 
Smith  Lawrence,  when  Pierce  passed  his  wronged  and  injured  wife 
on  the  highway  as  the  sun  was  setting,  and  gazing  after  her, 
exclaimed,  as  the  tears  came  to  his  eyes:  "I  would  give  all  that  I 
am  worth — I  would  give  the  whole  town  of  Climax  if  I  owned  it, 
if  I  had  lived  with  that  woman!"  There  was  conscience — there 
were  the  scourges  of  memory  at  work.  At  last,  bent  and  broken 
under  the  heavy  load  of  moral  guilt,  of  violated  physical  law  and 
domestic  trouble,  with  mind  impaired  and  shattered,  and  confused 
by  drink,  under  the  powerful  influence  of  another,  he  put  his 
unsteady  hand  to  a  will  which  outrages  every  sentiment  of  human 
affection,  and  controvenes  every  principle  of  natural  justice. 

Gentlemen,  it  is  your  solemn  prerogative  now  to  correct  and 
repair  this  terrible  work.  You  must  set  aside  this  wretched  mock- 
ery of  a  will.  Let  this  man's  property  descend  to  all  his  children — 
to  the  deserving  and  the  undeserving  alike.  These  contestants  will 
then  only  share  equally  with  the  children  of  this  usurping  woman, 
and  she  herself  will  remain  the  dead  man's  widow  in  the  law,  to 
the  exclusion  of  that  early,  lawful  wife,  who  still  lives  to  suffer 
from  man's  injustice.  What  more  ought  these  proponents  to  ask 
or  expect  ? 

Gentlemen,  I  beg  of  you  to  pause  and  reflect  before  you  render 
a  verdict  sustaining  this  will.  You  have  it  now  in  your  power  to 
do  a  great  and  supreme  act  of  justice — an  act  noble  and  God-like, 
and  worthy  of  your  sympathies  as  men  and  your  oaths  as  jurors 
It  is  the  glory  of  a  jury  to  be  able  to  execute  some  portion  of 
that  justice  which  belongs  supremely  to  God — to  vindicate  the 
cause  of  the  weak  and  oppressed,  and  to  blast  and  shatter  the 
power  of  the  oppressor.  In  the  name,  then,  of  common  justice 
and  humanity,  I  appeal  to  you  for  a  verdict  for  these  contestants. 
Let  no  preconceived  opinions,  no  prejudice,  no  obstinacy  in  your 
jury  room,  no  specious  pleas  of  any  kind,  keep  you  from  this 
high  duty.  For  in  doing  this  you  will  be  true  to  your  oaths,  true 
to  the  law,  true  to  what  this  dead  man  would  say,  could  he  now 
speak  to  you  from  the  grave,  and  true  to  the  eternal  principles  of 
justice  and  right. 


FARM  AN- WARD  TRIAL.  205 

[Mr.  May's  speech  covered  fifty-four  pages  of  closely  printed 
matter,  necessarily  condensed  for  this  purpose.  The  will  waa 
oroken.} 


THE  FARMAN-WARD  TRIAL. 

Held  at  Detroit,  November,  1867. 

In  this  trial  Senator  Jacob  M.  Howard  made  his  last  appeal  to  a 
jury.  It  is  very  brief,  many  of  the  circumstances  being  lost  for 
lack  of  a  stenographer's  report.  The  facts,  as  preserved,  will  be 
read  with  interest  by  all  who  appreciate  oratory  or  know  of  the 
distinguished  advocates  who  participated  in  the  investigation  of 
the  tragedy. 

The  strong  confidence  of  counsel  on  clearing  their  client  by 
public  opinion  is  a  marked  feature  of  the  defense.  Their  theory 
was  based  upon  the  common  sense  of  the  jury  and  the  right  of 
protection  that  a  brother  could  render  an  orphaned  sister.  The 
boldness  of  the  appeal  made  for  young  Farman  was  heroic.  The 
story  of  the  case  is  almost  incredible. 

In  the  early  evening  of  October,  1865,  Avhile  Captain  John  P. 
Ward  (a  vessel  owner), was  walking  the  streets  of  Port  Huron,  in 
company  with  his  friends,  he  was  suddenly  confronted  by  defend- 
ant Farman,  a  boy  of  sixteen  years,  who  fired  three  shots  at  Ward, 
wounding  him  fatally,  death  resulting  on  the  22d,  some  days  later. 

Previous  to  the  shooting,  Ward  had  taken  charge  of  Farman's 
little  sister,  of  near  fifteen  years  of  age,  to  take  her  to  Detroit  from 
Lexington,  and  (as  Farman  believed)  seduced  or  outraged  the  girl 
on  the  hurricane  deck  of  Ward's  steamer.  The  child  being  unat- 
tended, of  weak  mind  and  tender  years,  made  the  facts  extremely 
revolting. 

Before  the  shooting,  an  examination  was  had,  and  it  appears 
Famian  feared  Ward  would  be  released  and  go  free.  Threats  of 
that  were  freely  made,  and  that  no  justice  would  bind  him  over. 
This,  coming  to  Farman,  led  to  the  homicide.  Further  facts  will 
appear  in  graphic  form  through  the  ingenious  statement  of  counsel. 

The  language  of  Hon.  G.  V.  N.  LOTHROP  is  terse,  and  at  times 
powerful,  as  the  brief  selections  will  show.  He  began  by  say.ing- 


206  MODERN  JURY  TRIALS. 

The  act  carries  its  own  commentary.  It  is  not  the  brutal  kill- 
ing of  an  assassin.  It  frames  a  vindication  in  the  minds  of  every 
right-minded  man  and  every  pure-minded  woman.  I  never  had  a 
more  grateful  task  in  all  my  professional  services  than  that  which 
calls  upon  me  to  express  this  before  you.  We  would  not  willingly 
drag  the  turf  from  the  dead  shame;  we  would  leave  it  to  time  and 
oblivion.  But  in  behalf  of  the  living  and  the  dead,  and  in  behalf 
of  justice  in  the  case  of  this  boy,  I  rejoice  to  do  my  duty.  The 
charge  is  murder,  one  of  the  highest  offenses  against  God  and  man. 
Look  at  the  prisoner.  Does  he  look  like  a  murderer,  or  dangerous 
to  society  ?  What  is  there  in  the  act  of  the  boy  that  speaks  of  a 
wicked  and  malicious  heart  ?  Look  at  him;  you  see  him  moved  by 
a  great  cause.  You  see  before  you  his  little  sister,  tender  beyond 
her  years.  You  see  him  with  his  widowed  mother;  you  see  the 
affliction  of  the  family.  There  never  was  a  more  touching  story  in 
itself  told  anywhere.  What  is  it  that  brings  this  boy  to  a  bar  of 
justice  to  answer  for  a  crime  ?  What  brought  him  here  to-day  ? 
It  is  the  old,  old  story.  A  tragedy  of  wealth  and  pride  that  time  has 
been  repeating  over  and  over  again,  and  will  as  long  as  the  world 
shall  stand.  This  pride  and  wealth  and  lust  learns  its  lesson 
slowly  and  hard.  We  see  many  of  them  in  history. 

Twenty-five  hundred  years  ago,  when  Brutus  bore  aloft  the 
bleeding  body  of  Lucrecia;  when  the  people  of  Rome  tore  down 
the  kingly  throne,  and  the  brutal  emperor  barely  escaped  alive,  I 
dare  say  some  satellites  of  Tarquin  said  this  was  murder;  I  dare 
say  some  senator  might  have  protested  against  the  aggression  on 
the  kingly  life,  but  that  is  lost  in  history  and  the  roar  of  the 
Roman  people.  We  are  told  that  the  peace  of  society  has  been 
periled  because  a  young  Tarquin  met  his  Brutus  at  the  hands  of 
this  boy  defendant.  Our  society  !  has  it  been  less  protected,  less 
secure,  gentlemen  of  the  jury  ?  For  six  months  he  has  been  liber- 
ated on  bail,  by  one  of  the  most  esteemed  judges  that  ever 
graced  the  bench,  and  we  see  no  danger.  Since  he  has  been  at  large 
in  his  humble  and  quiet  pursuit,  who  has  noted  danger  ?  Is  it  not 
quite  the  reverse,  gentlemen  ?  You  know  the  peace  of  society  has 
not  been  periled;  but  a  feeling  of  satisfaction  has  come  to  tell  us 
that  the  ravisher  in  this  community  shall  not  go  unpunished.  Was 
there  horror  at  the  killing  of  Ward  ?  The  horror  belongs  to  the 
other  part !  Murder  is  killing  a  human  being  in  the  peace  of  God. 
Was  he  in  the  peace  of  God  ?  He  that  had  invaded  the  sanctity  of 
this  poor  girl's  honor,  was  struck  down  by  the  noblest  passion  that 
can  animate  man  !  An  act  for  which  every  virtuous  maid  and 
matron  in  the  land  should  crown  him  with  wreaths  of  laurels ! 


FARMAN-WARD  TRIAL.  207 

Hon.  A.  B.  MAYNARD  spoke  eloquently  for  the  defense,  often  in 
that  peculiar  vein  of  homely  sarcasm  that  moves  a  jury  more  than 
logic : 

Counsel  have  cited  ancient  cases;  so  will  I.  There  was  the  case 
of  Simon  and  Levi  in  thirty-fourth  chapter  of  Genesis.  Levi  had  a 
beautiful  sister,  and  Shechem,  who  seduced  her,  was  a  pretty  respec- 
table sort  of  a  fellow,  for  he  said  to  Jacob,  her  father,  "  Ask  me 
never  so  much  dowry  and  gift  and  I  will  give  it."  But  Levi  was 
still  angry  at  the  outrage,  and  said,  we  cannot  do  this  thing  ;  we 
cannot  give  our  sister  to  the  uncircumcised;  and  finally  they  were 
circumcised,  and  while  they  were  still  sore,  Daniel  fell  upon  them 
and  slew  them  and  took  their  sheep  and  cattle,  and  confiscated 
their  property  in  good  fashion.  And  Jacob  thought  it  over  and 
said  to  Simon  and  Levi,  "  Haven't  we  been  a  little  severe  in  this 
matter  ? "  and  the  boys  said,  "  Father,  shall  this  man  deal  with  our 
sister  as  an  harlot  ? "  and  Jacob  subsided  and  said,  "  You  served 
him  right." 

There  was  another  case,  of  David's  son  Amnon,  that  pretended 
to  be  sick,  and  had  his  sister  Tamar  sent  in  to  prepare  his  meat. 
And  Tamar  took  flour,  and  made  cake  in  his  presence,  *  *  * 
and  he  forced  Tamar,  and  outraged  her.  She  protested  and 
entreated,  and  all  to  no  purpose.  He  insisted,  and  when  he  had 
done  his  devilish  deed  and  turned  her  bodily  into  the  street,  he 
laughed  about  it  and  treated  it  as  a  huge  joke. 

But  Absalom,  his  brother,  heard  of  it.  He  suppressed  his  wrath 
for  two  long  years,  and  then,  at  a  sheep  shearing,  while  Amnon 
was  merry  with  wine,  they  rushed  upon  him  and  slew  him.  And 
what  did  David  say?  "When  he  learned  that  Amnon  was  dead, 
he  was  comforted."  He  knew  he  was  not  fit  to  live  upon  the 
earth.  And  this  is  from  our  good  book,  the  Bible.  Why,  gentle- 
men, can  you  conceive  of  a  case  so  outrageous  ? 

Take  a  girl  of  twenty-five  or  thirty,  it  would  be  bad  enough. 
But  take  a  feeble  child,  who  is  put  in  the  custody  of  one  almost  as 
her  guardian  and  protector,  and  seeking  a  dangerous  place,  away 
up  on  a  hurricane  deck,  to  accomplish  his  hellish  purpose!  blasting 
her  future  life,  and  carrying  ruin  upon  her  heart-broken  mother, 
widowed,  poor,  and  unable  to  bear  the  anxiety  of  a  trial  like  this! 
I  tell  you,  gentlemen,  nothing  could  sting  the  heart  to  madness  as 
this  transaction.  And  when  you  think  of  a  strong  man  taking  a 
timid  girl  upon  that  high  deck,  with  a  lie  in  his  mouth,  saying  the 
air  was  better,  that  she  would  find  company  up  there,  and  sur- 
rounded by  his  minions  and  crew  to  guard  his  dreadful  deed;  and 
say,  when  such  circumstances  are  brought  home  to  a  brother,  it  is 


208  MODERN  JURY  TRIALS. 

as  though  he  caught  the  villain  in  the  act;  and  in  view  of  the 
degrading  deed,  and  in  view  of  the  shielding  the  ravisher  from  the 
penalties  of  such  an  atrocious  wrong — in  the  name  of  God,  what 
more  would  you  want  to  madden  and  craze  and  provoke  jone  more 
to  the  deed  he  did  ?  I  ask  you,  if  that  would  not  carry  his  passions 
beyond  his  control,  what  would  ?  If  he  had  approached  your  sister, 
in  the  commission  of  the  deed,  would  you  not  strike  him  to  death 
on  the  moment,  on  the  spot,  and  every  man  of  you  say  "Amen  ? n 
*  *  *  If  he  had  happened  along  in  time  to  see  the  outrage, 
would  you  claim  that  he  ought  to  be  prosecuted  ?  *  *  He 

had  heard  her  story.     He  had  heard   Ward  was  going  to  escape. 
The  scene  came  up  in  all  its  consequences.     *  And  we 

all  know,  in  deep  affliction,  there  is  no  great  outburst  of  feeling; 
there  is  a  quiet  surface,  but  a  determined  act.  Can  you  believe 
this  poor  boy's  mind  was  free  from  it,  night  or  day?  This  outrage 
on  his  only  sister,  of  tender  years,  looking  to  him  as  her  protector  ? 
Night  and  day,  from  that  fatal  time,  he  carried  his  sorrow,  his 
emotions,  till  again  and  again  he  sees  the  deed  in  all  its  horror; 
sees  his  family  disgraced,  and  the  villain  go  free!  I  say  it  was 
too  much  for  his  reason,  his  judgment,  and  his  self-control!  And 
he  broke  down  under  it  all;  and  it  ia  for  you  to  say,  whether, 
under  the  facts,  you  will  pronounce  him  a  murderer!  *  *  * 
I  say,  and  say  it  solemnly,  and  say  it  meaning  what  I  say,  if  this 
boy  was  a  boy  of  mine,  I  would  thank  God  that  he  had  the  man- 
hood to  pull  the  trigger  that  sent  'he  buttet  which  gave  Johe\  P.  Ward 
the  downward  pass  to  his  final  home! 

Fandan  a  case  was  finally  abandoned,  although  this  jury  stood 
eight  for  conviction  and  four  for  acquittal. 

An  incident  in  the  above  case  may  be  added.  Counsel  pressed 
the  cross-examination  of  Farman  to  great  length.  Mr.  Lothrop 
objected,  as  it  might  tend  to  prejudice  defendant.  Judge  Walker 
directed  that  the  question  should  be  answered.  Mr.  Lothrop  said, 
"Don't  answer."  "Answer!"  replied  Judge  Walker,  sternly. 
But  the  witness  refused,  and  a  scene  of  confusion  followed,  but  no 
answer. 

After  the  jury  retired,  Mr.  Lothrop  was  called  up  and  fined  tec 
dollars  for  contempt,  being  severely  censured  by  the  court,  to  which 
he  said,  "  The  pecuJinr  circumstances  of  the  case  places  me  beyond 
the  power  to  compete  with  the  extreme  language  of  the  court !  " 

He  had  supposed  his  whole  duty  was  to  protect  his  client  from 
harm  in  every  way  possible.  He  would  not  appeal,  but  he  knew  of 


RULES  OF  PRACTICE.  209 

no  precedent  that  would,  under  like  circumstances,  censure  the  act 
he  had  attempted  in  good  faith.  He  continued  at  length,  to  the 
amusement  of  the  bar,  who  evidently  were  clearly  on  his  side. 

A  passage  at  arms  between  Counselors  Lothrop  and  Howard 
occurred  at  the  closing  of  Mr.  Howard's  address  for  The  People, 
that  is  an  excellent  specimen  of  the  distinguished  advocate's  power 
in  reply.  Mr.  Lothrop  had  said  to  the  jury:  "It  was  an  act,  gen- 
tlemen, for  which  every  virtuous  maid  and  matron  in  the  land 
should  crown  him,  with  wreaths  of  laurels!"  Coming  to  this 
point,  Senator  Howard,  in  his  massive,  Websterian  style,  said: 
"How  did  he  kill  him?  He  shot  him!  Where?  In  the  back! 
While  he  was  down!  Three  times  in  the  back!  Shot  him  again 
and  again,  the  young  assassin!  Yes,  the  young  assassin  !  (hissing 
it  with  tremendous  force.)  And  this  was  the  act  for  which  my 
brother  would  have  every  virtuous  maid  and  matron  in  the  land 
crown  him  with  wreaths  of  laurels! "  The  effect  was  electric. 

It  is  regretted  that  no  report  can  be  had  of  this  extremely 
ingenious  and  effective  speech.  Mr.  Howard's  rare  faculty  lay  in 
convincing  a  jury.  He  had  been  prosecuting  attorney  and  attor- 
ney general,  as  well  as  representative  in  Congress  and  senator, 
when  this,  his  last  jury  argument,  was  delivered. 

He  spoke  with  force  and  fervor,  in  gesture  using  mainly  his 
right  hand.  There  was  a  measured  rhythm  of  his  strong  sentences 
that  broke  down  all  little  points,  and  sent  conviction  directly 
to  the  hearts  of  the  jury.  In  this  trial  he  was  aroused  to  his  very 
best.  With  every  element  of  sympathy  against  him,  he  prevented 
an  acquittal. 


TWENTY-ONE  RULES  OF  PRACTICE. 


Book  knowledge  of  law  is  like  a  chest  of  fine  tools  in  the  hands 
of  an  unskilled  artisan — useful,  but  impractical,  without  experi- 
ence. Practice  in  law  must  be  largely  learned  from  contests  in 
courts.  It  is  the  lawyer's  trade;  the  more  he  has  of  good  practice, 
the  better  he  will  know  how  to  apply  his  learning. 

To  have  the  keen  tools,  and  the  well  learned  trade,  both  at  com- 
mand, may  make  him  an  accomplished  workman.  No  arbitrary 
rules  of  study  can  be  laid  down,  as  few  follow  the  whole  field  of 
law,  atd  more  adopt  some  specialty,  and  read  accordingly.  From 
14 


210  MODERN  JURY  TRIALS. 

observation,  practice,  reading,  attendance  at  courts,  in  different 
States,  and  counsel  with  able  attorneys,  the  following  rules,  with 
reasons,  are  given  as  aids  and  suggestions  in  general  practice. 

The  general  rules  of  practice  may  be  confined  to  twenty-one,  and 
by  careful  attention  to  each,  great  advantage  will  be  gained  over  a 
hap-hazard  method  of  trials,  without  any  fixed  purpose  in  examina- 
tion of  witnesses  or  argument  to  a  jury.  They  may  lead  to  win- 
ning five  extra  cases  a  year. 

RULE  L 

Study  every  case  by  itself  thoroughly,  and  make  a  clear  brief  of 
both  law  and  evidence. 

No  musician  will  undertake  to  execute  new  and  difficult  music 
before  a  public  audience  without  knowing  what  it  is,  and  how  it 
sounds;  he  will  drill  on  every  note  until  he  masters  each  inflection. 
Actors  rehearse  before  every  play.  Horses  are  scored,  trained  and 
practiced  before  every  race.  Boxers,  wrestlers,  racers,  walkers  and 
oarsmen  never  start  off-hand.  It  has  been  told  again  and  again, 
that  the  best  trained  athletes  were  the  most  likely  to  win  ;  why 
should  lawyers  be  an  exception  ? 

A  lawyer  in  court  without  a  brief  is  like  a  captain  at  sea  without 
his  chart;  a  driver  without  a  tried  horse;  a  marksman  with  an 
unknown  gun.  But  one  with  a  well-mastered  case  is  strong  in 
every  muscle;  indeed,  his  victory  is  over  half  accomplished. 

RULE  IL 
Know  what  each  witness  will  swear  to,  separately,  and  together. 

It  often  happens  that,  in  criminal  cases  and  family  quarrels, 
witnesses  are  separated  after  the  manner  of  the  well  known  trial  of 
Susannah  and  the  Elders,  given  in  the  Bible,  where,  on  the  first 
hearing,  with  witnesses  &11  present,  it  was  shown  that  Susannah 
was  guilty,  but  when  ali  of  the  witnesses  were  excluded  but  the 
person  testifying,  two  material  points  crossed  each  other  :  the  one 
Elder  swore  to  an  offense  under  the  olive  tree,  and  the  other  to  the 
same  offense  under  the  mulberry  tree  1 — each  on  opposite  sides  of 
the  garden  !  Susannah  went  free,  while  her  accusers  were  executed. 

Show  each  witness  the  importance  of  candor  /  of  holding  to  the 
truth,  and  talking  in  a  reasonable  manner,  with  facts  and  circum- 
stances so  woven  together  as  to  secure  confidence.  I  remember  an 
assault  case,  where  an  eye  was  put  out  with  a  poker,  made  from  a 
shovel  handle.  In  the  doctor's  statement  of  why  he  knew  it  was 
that  way  (instead  of  a  fall  on  the  zinc  platform,  as  claimed  b) 


RULES  OF  PRACTICE.  211 

defendant),  he  showed  that  the  soot  in  the  wound  from  the  poker 
appeared  like  butter  cut  with  a  rusty  knife,  which  convinced  him, 
and  it  convinced  the  jury,  who  gave  heavy  damages  to  the  plaintiff. 

RULE  HL 
Open  the  case  fully  before  any  evidence  is  in. 

Whether  the  plaintiff  or  defendant,  the  claim  should  be  known, 
and  fastened  in  the  minds  of  the  jury,  from  the  start.  If  for  the 
plaintiff,  a  careless,  half  heedless  statement  is  made,  little  import- 
ance will  be  attached  to  the  suit  until  it  opens  itself,  as  it  were, 
and,  in  such  cases,  juries  often  take  an  early  prejudice  that  requires 
a  great  amount  of  evidence  to  remove.  It  is,  therefore,  very  essen- 
tial to  success  that  a  terse,  clear,  and  forcible  opening  be  made, 
and  one  that  is  comprehensive  and  interesting  to  a  jury. 

Especially  is  this  true  in  criminal  defenses,  where,  by  an  even 
start,  the  jury  may  carry  a  favorable  impression  of  facts  in  the 
prisoner's  favor,  that  will  come  with  double  weight  if  opened  early 
in  the  trial.  Experience  shows  that  little  is  ever  gained  by  a 
smothered  defense.  The  People's  side  is,  of  course,  well  known. 
The  defendant,  if  brought  in  fresh  from  the  jail,  comes  under  a 
cloud;  suspicion  is  cast  upon  him  by  the  mere  force  of  circumstances, 
and  many  believe  prisoners  guilty  simply  because  they  are  under 
arrest.  It  is  of  the  utmost  importance  that  not  one  word  of  evi- 
dence be  heard  in  such  cases  before  a  full,  earnest  and  candid  open- 
ing is  made  for  the  defendant.  Courts  always  permit  it,  and  often 
encourage  it.  This  style  of  opening  has  a  double  advantage  of 
allowing  counsel  to  tell  the  worst  that  is  likely  to  be  established 
against  the  defendant,  with  his  answer  thereto;  creating  an  impres- 
sion that,  even  with  such  damaging  circumstances,  the  prisoner  is 
not  guilty.  It  is  not  the  duty  of  defending  lawyers,  however 
conscientious,  to  convict  their  clients;  such  is  the  province  of  a 
jury,  and,  if  ever  so  guilty,  the  counsel  for  defense  does  his  whole 
duty  to  present  his  client's  case  in  a  clear,  convincing  way,  that, 
with  the  People's  side  equally  well  managed,  The  jury  may  reach  a 
decision  based  on  the  law  and  evidence,  fully,  clearly  and  evenly 
explained.  An  exception  to  this  general  rule  will  be  in  cases 
where  the  defense  is  made  wholly  from  the  weakness  of  the  plain- 
tiff's evidence,  or  from  cross-examination. 


MODERN  JURY  TRIAL& 


RUUB  IV. 
J?«  forcible,  firm,  dignified  and  clear. 

A  jury  will  not  be  long  in  reading  between  the  lines,"  if  counsel 
lacks  force  and  earnestness  of  manner,  and  an  interest  in  his  client. 
For  days  and  months,  both  parties  to  the  suit  may  have  carried 
their  legal  trouble  at  home,  and  at  work,  like  a  leaden  load, 
dreamed  of  it  nights,  and  pondered  over  it  hours  together,  until 
their  heads  would  ache  with  anxiety.  To  such,  a  tame  or  waver- 
ing presentation  of  their  side  of  a  suit  is  more  than  human  nature 
can  endure,  and  is  sure  to  lose  a  client,  if  not  the  case  on  trial. 

A  firm  and  dignified  bearing  will  be  impressive  alike  to  court 
and  jury,  and  add  respect  for  your  argument  that  never  comes  of 
"  shilly-shally,"  and  frivolous  statements.  The  business  of  law- 
suits is  to  adjust  differences,  protect  the  helpless,  enforce  rights, 
and  punish  wrong-doers  —  it  is  serious  business.  But  above  all, 
says  an  old  attorney,  BE  CLEAR.  Many  jurors  are  ignorant  of  long 
words;  they  do  not  comprehend  the  real  issue  to  be  decided;  some 
understand  English  imperfectly,  others  reason  in  a  slow,  round- 
about way,  and  reach  conclusions  after  a  long  study  and  much 
meditation.  Witnesses  may  be  confused  by  a  lack  of  clearness. 
It  is  a  good  plan  to  see  some  experienced  juryman,  early  after  a 
trial,  for  a  few  trials  at  least,  and  ask,  how  that  case  was  presented. 
In  nine  out  of  ten  cases  he  will  say,  you  ought  to  have  made  this 
or  that  point  a  little  plainer.  The  jury  did  not  understand  it 
fully. 

RULE  V. 
Never  be  bluffed  out  of  Court,  but  do  not  begin  the  bluff. 

Once  in  court  stay  in,  and  be  an  opponent,  as  Shakespeare  well 
describes  through  Polonius  :  "Beware  of  entrance  to  a  quarrel, 
but  being  in,  bear  it  that  the  opposer  may  beware  of  thee  !" 

Some  men  will  fight  all  the  better  by  being  thrown  down  a  pair 
of  stairs;  -some  take  to  the  woods  at  the  first  show  of  battle. 
Clients,  suitors,  juries  and  spectators,  like  a  man  who  can  stand  in 
an  emergency.  A  sudden  turn  in  a  suit  —  a  new  point  sprung  upon 
the  trial  —  an  enemy  from  the  flank  —  should  draw  out  the  resources 
of  an  advocate;  and  happy  the  man  who  is  equal  to  such  occasions. 
If  equal,  he  is  marked  and  remembered  long  afterwards  ;  but 
to  secure  this  victory,  one  should  be  very  guarded  not  to  begin  the 
assault,  for  the  vanquished  assaulter  is  always  doubly  defeated  and 
humiliated.  Great  lawyers  seldom  stoop  to  petty  advantages. 


RULES  OF  PRACTICE.  213 

RULE  VL 
Brevity  of  facts,  terseness  of  statements,  tell  b&t. 

Only  one  lawyer,  since  Rufus  Choate,  has  succeeded  by  lengthy 
sentences,  as  an  advocate  before  juries — Mr.  Evarts — and  his  hap- 
piest efforts  are  given  in  less  elaborate  style  than  is  his  usual 
custom.  Men  like  Col.  Ingersoll,  who  cut  up  their  statements  in 
little  stars,  are  followed  with  greater  interest. 

In  the  jury-room,  after  the  Court's  charge,  when  twelve  men  con- 
tend for  a  verdict,  will  be  often  heard  such  little  old  sayings  as, 
"  The  laborer  is  worthy  of  his  hire  " — "  They  don't  make  thieves 
out  of  that  kind  of  men  " — "  It  takes  two  to  make  a  bargain  " — 
"  Who  began  it  ?" — "  It  served  him  right " — "  Put  yourself  in  his 
place  " — "  Give  him  another  chance  " — "  How  many  men  would  do 
differently  ?  " — "  No  man  becomes  suddenly  vile."  These  are  not 
forgotten. 

RULE  VIL 
Never  allow  yourself  to  switch  off — "  Kill  the  squirrel !  " 

A  trite  old  saying  is,  "Stick  to  your  text."  In  a  lawsuit  many 
things  happen  to  try  one's  patience;  witty  retorts,  stinging  replies, 
low  personalities,  may  so  engage  counsel  and  jury  as  to  smother 
and  obscure  the  case.  Jurors  take  sides,  and  lawyers  that  grow 
personal,  and  enter  into  outside  discussions,  will  lead  a  jury  in  the 
same  direction.  The  real  winner,  after  all,  is  one  that,  with  single- 
ness of  purpose,  holds  to  his  point,  and  hugs  the  issue  to  the 
end.  Harper's  Weekly  gave  an  excellent  story  of  a  lawyer  select- 
ing a  clerk,  that  applies  to  this  point  admirably.  The  lawyer  put 
a  notice  in  an  evening  paper,  saying  he  would  pay  a  small  stipend 
to  an  active  office  clerk;  next  morning  his  office  was  crowded  with 
applicants — all  bright,  and  many  suitable.  He  bade  them  wait  in  a 
room  till  all  should  arrive,  and  then  ranged  them  in  a  row  and  said 
he  would  tell  a  story,  and  note  the  comments  of  the  boys,  and 
judge  from  that  whom  he  would  engage. 

"  A  certain  farmer,"  began  the  lawyer,  "  was  troubled  with  a  red 
squirrel,  that  got  in  through  a  hole  in  his  barn,  and  stole  his  seed 
corn;  he  resolved  to  kill  that  squirrel  at  the  first  opportunity. 
Seeing  him  go  in  at  the  hole  one  noon,  he  took  his  shotgun  and 
tired  away;  the  first  shot  set  the  barn  on  fire." 

"  Did  the  barn  burn  ?  "  said  one  of  the  boys. 

The  lawyer,  without  answer,  continued:  "And  seeing  the  barn 


214  MODERN  JURY  TRTATA 

on  fire,  the  farmer  seized  a  pail  of  water,  and  ran  in  to  put  it  out." 

"Did  he  put  it  out?"  said  another. 

"  As  he  passed  inside,  the  door  shut  to,  and  the  barn  was  soon  in 
full  flauies.  When  the  hired  girl  rushed  out  with  more  water — " 

"  Did  the  hired  girl  burn  up  ?  "  said  another  boy. 

The  lawyer  went  on,  without  answer — "  Then  the  old  lady  came 
out,  and  all  was  noise  and  confusion,  and  everybody  was  trying  to 
put  out  the  fire.** 

"  Did  they  all  burn  up  ?  n  said  another. 

The  lawyer,  hardly  able  to  restrain  his  laughter,  said:  "There, 
there,  that  will  do;  you  have  all  shown  great  interest  in  the  stoiy;" 
but,  observing  one  little  bright-eyed  fellow  in  deep  silence,  he  said, 
**  Now,  ray  little  man,  what  have  you  to  say  ?  " 

The  little  fellow  blushed,  grew  uneasy,  and  stammered  out,  "  1 
want  to  know  what  became  of  that  squirrel,  that's  what  I  want  to 
know." 

"You  will  do,"  said  the  lawyer;  "yon  are  my  man;  you  have  not 
been  switched  off  by  a  confusion  and  a  barn's  burning,  and  hired 
girls  and  water  pails;  you  have  kept  your  eye  on  the  squirrel." 

A  whole  chapter  is  given  in  this  story.  It  is  packed  full  of 
excellent  advice  to  beginners,  with  a  few  good  hints  to  older  coun- 
sel. In  every  suit  there  is,  or  should  be,  one  squirrel  to  kill,  and 
no  more. 

RUIJB  VIIL 
Remember,  juries  do  not  know  att  of  the  facts. 

Lawyers  appreciate  the  fact  that  cases  come  to  the  office  in  a 
vague,  uncertain  way.  The  half  is  not  always  told;  that,  even  with 
several  calls  and  explanations,  it  is  difficult  for  a  counsel  to  under- 
stand the  facts  of  a  law  suit.  Think,  then,  how  much  more  it  is  to 
show  these  facts  to  the  twelve  new  listeners,  under  the  narrow 
rules  of  evidence,  and  to  enable  men  unlearned  in  the  law  to  reach 
a  correct  decision.  Is  it  a  wonder  that  juries  blunder?  Is  it  not  a 
wonder  that  they  do  so  well  ? 

An  old  lawyer  once  said,  after  every  defeat  in  court,  "  If  you 
could  ask  the  cause,  the  answer  would  be,  'Your  men  had  the  wrong 
side,  or  they  didn't  understand  it.'  r 

It  may  be  the  witnesses  are  confused,  that  they  do  not  talk 
well  in  their  statements.  It  is  better  always  to  win  a  suit  first  in 
the  office.  Let  each  witness  be  carefully  examined,  and  cross- 
examined,  and  re-examined,  until  they  know  the  effect  of  a  halting, 
unreasonable,  untruthful  story,  and  know  how  much  stronger  zfact 
is  accompanied  by  a  circumstance. 


KULE8   OF  JfHAUTlGJG.  '215 

Here  is  a  suit  over  a  broken  leg  in  a  wrestle.  Six  men  swear  it 
was  a  friendly  wrestle,  but  the  injured  man  says,  "I'll  tell  you  just 
how  it  happened.  The  most  of  the  men  were  half  drunk;  it  was 
late  in  the  night;  I  had  been  sick;  I  didn't  want  to  wrestle;  he  had 
tried  me  before;  he  is  too  strong  and  big  for  me;  I  shied  away  from 
him;  then  he  came  up  again  with  his  thumbs  in  his  vest,  and  told 
me  he  never  meant  to  hurt  me;  just  then,  as  he  got  in  reach,  he 
grabbed  me,  so  (illustrating),  and  jerked  me,  threw  me  against  the 
billiard  table,  and  broke  my  leg  in  two  places;  I  never  even  clinched 
with  him;  then  he  bent  down  and  said,  almost  crying,  'I  didn't 
mean  to  hurt  you,  Billy;  I'll  make  it  all  right — I'll  pay  all  it  costs 
you.'"  He  won,  over  the  six  witnesses;  he  had  a  fact  and  an  inci- 
dent combined.  A  fact  is  always  stronger  and  clearer,  coupled 
with  a  picture  of  how  it  happened. 


RULE  IX. 
Show  no  uneasiness  in  temporary  defeat. 

Sometimes  a  point  fails,  a  branch  of  a  suit  falls  through.  It  may 
not  be  more  than  the  regiment  of  an  army.  It  is  no  time  to 
flinch  or  show  color;  it  is  a  time  to  bring  out  mettle.  At  such 
times  Mr.  Lincoln  is  said  to  have  coolly  remarked:  "We  will  give 
them  that  point;  I  reckon  they  were  right  there."  Proceed  with  as 
much  coolness  as  though  the  value  of  the  loss  were  less  than  a 
shilling.  But  use  the  other  forces,  and  see  that  the  whole  bottom 
of  the  case  never  falls  through  a  small  opening.  Good  lawyers 
say  that  cases  they  were  sure  of  winning,  are  often  lost,  and  others 
that  seemed  lost  in  the  middle  of  a  trial,  turn  out  splendidly  in  the 
end.  It  is  well  to  have  a  smooth,  unbroken  line  of  evidence,  but  a 
sharp,  stinging  defeat,  on  one  point,  and  a  pithy,  incisive  argument 
on  the  balance  of  a  suit,  may  make  a  lasting  victory.  New  trials, 
frequent  reversals  and  discouraging  circumstances,  may  end  in  sig- 
nal success. 

A  dry-goods  runner  was  injured  in  a  railroad  accident,  and 
sued  the  company  (Grand  Trunk  Railway),  and  won  a  $15,000  ver- 
dict. A  new  trial  was  granted,  and  he  gained  $26,000.  A  change 
of  venue  and  one  more  trial  brought  him  $45,000  damages,  which 
last  judgment  was  affirmed.  Nothing  could  be  clearer  than  that 
impediments  to  a  trial,  or  set-backs  in  enforcing  a  claim,  are  con- 
sidered by  juries  in  the  final  balance  arrived  at.  So  it  is  true,  when 
one  contends  against  odds,  juries  remember  it,  and  as  sure  as 
any  mean  little  advantage  is  taken  in  a  trial,  so  sure  the  advantage 


218  MODERN  JURY  TRIALS. 

taker  is  the  loser  in  the  long  run,  for  juries  are  human,  and  human 
nature  likes  fair  play  in  litigation. 

BULB  X. 
Drop  a  bad  witness —  Cross-examine  only  to  gain  by  it. 

To  cross-examine  a  sharp  witness  is  to  strengthen  his  testimony. 
Frank  Moulton,  in  the  Beecher  trial,  was  always  ahead  of  his 
examiners.  To  repeat  and  repeat  often,  is  to  weld  and  rivet  with 
the  jury  what  has  been  said,  as  most  witnesses  would  sooner  vary 
the  truth  than  own  to  a  falsehood.  It  is  only  on  cases  of  doubtful 
identity  that  cross-examination  tells  so  completely,  and  then  it  is 
dangerous  ground.  To  badger  a  bad  witness,  that,  like  a  race 
horse,  gains  by  every  break,  is  no  less  risky  than  playing  with  hot 
irons  where  some  one  will  be  burned. 

It  is  better  to  seem  not  to  need  him,  and  allow  it  to  go  half 
noticed,  than  intensify  a  weak  point  by  repeating  it  on  the  witness 
stand.  An  exception  to  the  rule  is,  where  in  a  murder  on  board  a 
steamer,  a  positive  witness  knew  just  how  many  officers  were  on 
board  w^o  they  were,  and  where  they  were;  but  on  placing  each  at 
a  certain  point,  he  was  confronted  by  the  question,  "  Who  was  at 
the  helm  ?"  Which  so  staggered  him  that  he  broke  down  and 
admitted  his  blunder. 

Another  case  of  identification  is  where  a  man  called  with  a  forged 
bill,  and  took  in  payment  a  check  for  a  large  sum  of  money.  On 
direct  examination  he  was  sure  he  knew  the  prisoner  to  be  the 
guilty  party;  but  being  wound  up  gradually  by  the  dark  or  light 
room,  whether  he  stayed  long,  or  was  spoken  to,  whether  he  had 
seen  the  prisoner  before,  and  finally,  if  he  was  as  sure  as  though  he 
actually  knew  him;  witness  faltered,  admitted  he  possibly  might 
be  mistaken;  that  he  had  some  doubt,  and  at  last  lacked  fully 
enough  of  certainty  to  make  a  reasonable  doubt,  and  release  the 
respondent.  This  cross-examination  should  be  used  with  caution, 
discretion  and  judgment. 

RULE  XL 

Make  your  evidence  reach  the  real  heart  of  the  case. 

Before  every  trial  witnesses  should  be  examined,  and  never  sworn 
without  cause,  and  held  to  a  strict  rule  of  evidence,  until,  with 
truth  and  candor,  they  can  bring  their  story  to  the  gist  of  the 
action.  More  witnesses  swear  around  a  point,  and  omit  vital  and 
essential  elements,  than  come  squarely  up  to  the  mark,  and  make 
their  meaning  fully  known. 


RULES  OF  PRACTICE.  217 

Sometimes  a  case  turns  on  the  intent,  again  on  the  cause,  and 
often  on  who  was  the  offender.  To  know  what  the  core  of  the 
case  is,  and  hold  it  in  sight,  by  the  proof  is  the  part  of  a  wise  coun- 
selor. 

RULE  XIL 

"  The  main  point  in  law  is  good  evidence" 

Is  an  old  adage,  and  one  not  to  be  forgotten.  Impress  client  and 
witnesses  with  the  fact  that  a  lawyer  should  know  the  good  and 
bad  side  both,  and  be  prepared  to  meet  either;  as  scouts  are  sent 
out  before  a  battle,  so  witnesses  should  be  tested  before  trials. 
Show  them  the  real  issue,  and  hold  them  hard  on  the  line  of  direct- 
ness. For  after  all,  "  Man  is  a  mystery  that  no  other  man  can 
solve;  we  are  all  spirits  in  prison,  making  signals  that  few  can 
understand." 

RULE  XIIL 
Avoid  frivolous  objections — Save  your  forces  for  the  main  chance. 

Many  a  lawyer,  to  be  witty  or  show  off,  will  talk  over  and 
work  over  his  ground  in  small  matters,  that  weary  the  court,  and 
become  stale  when  needed  in  the  final  argument. 

An  old  lawyer  (we  quote  him  often),  once  said,  "  The  worst  thing 
that  can  happen  to  a  young  man  is  to  think  he  is  smart." 

Such  men  grow  tricky,  captious,  and  excessively  anxious  to  show 
off  on  trials.  Juries  are  sure  to  count  the  case  weak  that  requires 
such  treatment.  It  is  a  mark  of  vanity  to  trifle  away  time  on  mat- 
ters that  reach  only  to  the  husk  or  chaff  of  a  case,  and  obscure  the 
kernel  by  such  tactics. 

Mr.  Lincoln  was  noted  for  giving  away  small  points.  "  We  may 
be  wrong  on  that,  your  honor,"  he  would  say;  or  "I  think  we  were 
wrong  there,  but  it  is  not  the  gist  of  the  matter  anyway."  This 
fair  play  and  liberality  always  told  with  a  jury,  and  when  he  finally 
said,  "  Now,  this  much  we  may  ask,  and  when  I  shall  state  it,  it 
will  be  a  reasonable  demand."  Then,  with  all  the  husk  trimmed 
off,  he  would  state,  in  a  candid  way,  such  a  reasonable  request  that 
the  justice  of  his  demand  stood  alone  and  relieved  of  everything, 
but  a  fair,  just  judgment. 

RULE  XTV. 

Speak  clearly,  carefully  and  candidly. 

Judge  Cochrane  was  one  of  the  most  patient  and  charitable  men 
that  ever  graced  a  bench.  He  would  listen  a  full  hour  to  a  dry, 


218  MODERN  JURY  TRIALS. 

tedious  plea  without  turning  in  his  chair.  But  he  sometime! 
remarked  aside  that  he  knew  of  lawyers  who  could  talk  a  full  hour 
and  not  make  one  single  point.  He  believed  many  attorney! 
talked  their  cases  to  death.  While  a  careful  explanation  is  a 
good  argument,  a  long,  drawn  out  talk,  without  a  definite  pur- 
pose, is  likely  to  lead  to  the  belief  that  the  lawyer  is  talking  to  per- 
suade men  against  their  better  judgment,  and  this  is  sure  to  react 
on  the  speaker. 

Jurors  respect  and  admire  candor,  and  occasionally  relish  wit, 
as  it  serves  to  rest  and  relax  their  minds  for  better  efforts;  but  lev- 
ity continued  at  any  length,  is  like  a  variety  show,  soon  forgotten. 
The  speeches,  plays,  songs  and  sayings  that  last,  and  ring  in  the 
ears  long  after  they  are  uttered  —  that  move  the  judgment  and 
mold  the  actions  of  men,  have  a  sacredness,  often  reaching  to  the 
fireside,  the  home  and  the  tender  relations  of  life.  Courts  and 
juries  should  be  impressed  with  the  single  thought  that  you  are  not 
inviting  them  to  either  a  quarrel  or  a  play,  but  to  determine  some 
right,  and  redress  some  wrong  that  you  failed  to  settle  otherwise. 
Aaron  Burr's  great  rule  was:  JBe  terse.  The  art  of  selection,  he 
said,  was  the  greatest  human  faculty.  His  arguments  were  made 
in  half  hours,  never  longer. 


XV. 
Drop  all  examinations  and  arguments  in  the  right  place, 

When  a  witness  has  reached  a  clear  point  and  a  smile  follows, 
per  force,  leave  the  point  —  let  it  stand  like  a  rock  on  the  mountain 
side,  uncovered  and  alone.  To  stop  short  will  attract  attention  and 
rivet  the  mind  to  its  importance. 

All  men  magnify  discoveries,  and  to  leave  it  as  though  a  keen 
sighted  man  would  just  see  it,  and  no  more,  gives  him  credit  for 
discernment,  and  relieves  his  mind  of  the  burden  and  rubbish  that 
he  dislikes  to  carry. 

It  is  only  here  and  there,  like  mile-posts,  that  salient  points  are 
fixed  in  the  minds  of  a  jury,  and  each  should  stand  alone  in  its 
strength  and  clearness. 

It  is  the  pith  of  a  story  to  end  well.  The  cream  of  a  joke  is  in 
the  little  things  suggested,  half  discovered,  that  lead  to  new-born 
pleasure.  A  surprise  in  evidence  should  end  where  the  story  ends, 
in  a  climax,  that  rings  like  a  whip  cracker.  The  same  may  be  said 
of  argument.  There  is  nothing  like  knowing  when  to  stop.  I 
remember,  in  a  trial  where  a  son  and  father  were  parties,  at  the 
close  of  a  pathetic  paragraph,  counsel  said:  "This  should  not  be, 


RULES  OF  PRACTICE.  219 

Nearing,  as  we  are,  the  great  holidays  when  children  gather  around 
the  fireside  and  tell  over  the  stories  of  the  past,  eat  and  drink  and 
be  merry,  in  the  sweet  memory  of  the  long  ago;  when  they  talk  of 
the  absent,  and  the  loved  and  lost,  this  should  not  be — "  And  sud- 
denly the  father  rose  up,  and  with  an  emotion  that  none  could  mis- 
take, he  pointed  to  the  judge  and  said:  "Tell  the  jury  to  give  him 
all  he  asks.  Stop,  say  no  more! "  and  counsel,  though  only  a  quar- 
ter through,  was  shrewd  enough  to  stop  at  a  winning  point. 

RULE  XVI. 

Let  judge  and  jury  know  you  mean  what  you  say. 

From  the  date  of  receiving  a  case  it  should  grow  on  the  mind 
continually.  By  frequent  reviews  before  the  trial,  by  making 
additions  to  briefs,  and  by  earnest  study,  it  should  be  a  case  for  a 
near  friend,  which  to  lose  will  cause  you  pain.  Let  it  be  as  though 
you  might  never  have  another  case,  and  on  this  one  hung  all  your 
reputation  as  an  attorney  for  life.  So  charge  yourself  with  it 
that  it  will  come  from  every  muscle,  every  gesture,  every  word,  as 
deeply  in  earnest.  There  is  no  power  in  persuasion  like  where  one 
believes  what  he  says,  where  it  breaks  down  all  opposition,  and  cuts 
to  the  hearts  of  hearers  like  the  language  of  a  Moody  or  a  Luther. 
Great  men  have  been  earnest  men.  Great  orators  have  been  moved 
by  their  own  words  and  arguments,  till  they  filled  their  hearers 
with  the  fire  of  enthusiasm.  The  earnest  words  of  an  old  Indian 
chief  will  better  express  this  thought.  Before  entering  a  battle  he 
would  call  his  braves  around  him,  and  smiting  his  brawny  hand 
upon  his  manly  breast,  he  would  say:  "I  know  that  I  shall  win  this 
battle;  I  feel  that  I  shall  win  this  battle;  It  is  burning  in  my  body, 
that  I  shall  win  this  battle  I " 

RULE  XVIL 

Consider  your  adversary  powerful,  and  "be  ready  for  him. 

It  was  a  rule  of  Napoleon  never  to  underrate  an  enemy.  In  court 
trials  the  enemy  is  usually,  and  almost  always,  stronger  than  we 
expect.  Hearing  one  side,  and  that  imperfectly,  and  generally  well 
colored,  the  attorney  is  often  surprised  to  find  he  has  much  to  con- 
tend with  before  unknown,  and  if  he  has  gone  to  trial  weak  in  law 
or  evidence,  he  may  find  too  late,  that  his  enemy  is  all  powerfui 
and  cunning,  and  he  may  fight  against  odds,  when  he  looked  for  an 
easy  victory.  An  easy  victory  in  law  is  not  common;  usually  both 
sides  have  some  rights.  Each  party  is  fortified,  or  he  would  have 


220  MODERN  JURY  TRIALS. 

surrendered  at  discretion.  It  will  not  do  to  depend  on  a  weak 
opponent  to  win  a  suit;  he  may  come  at  the  last  moment,  sup- 
ported by  able  counsel;  he  may  hare  practiced  until,  like  David 
with  his  sling,  he  can  hit  his  adversary  in  an  unarmed  place.  There 
is  only  one  way  to  be  tolerably  sure  of  winning,  and  that  is  to  be 
always  ready,  always  prepared,  and  always  willing  to  provide  th( 
best  weapons  of  warfare. 


XVI1L 
Suits  turn  on  evidence  of  facts,  with  the  application  of  the  law. 

To  make  a  legal  defense,  or  a  lawfuf  demand,  the  evidence  must 
be  within  the  rules  of  law  and  the  statute  of  limitations. 

An  oral  agreement  to  sell  real  property  or  assume  the  debt  of 
another  is  of  course  void,  and  the  first  consideration  will  be,  is  the 
demand  a  legal  one  ?  and  second,  can  it  be  sustained  by  evidence  ? 
It  is  not  only  humiliating,  but  a  source  of  actual  loss,  in  business, 
to  bring  a  stale  suit  and  find  it  barred  by  the  statute,  or  a  good 
cause  and  lack  evidence.  So  that  before  going  to  court,  every 
case  should  be  tried  in  the  attorney's  office;  tried  with  the  evidence 
and  law  at  hand,  and  tried  with  a  full  knowledge  of  the  facts,  but, 
more  than  all,  in  starting  a  suit,  to  use  the  right  parties,  to  bring 
the  right  action,  is  vital  to  the  life  of  the  litigation,  and  no  rule 
of  practice  should  be  more  carefully  heeded  than  this.  Be  sure  you 
are  right!  If  upon  the  wrong  road,  the  further  you  go  the  more 
time  is  lost,  and  the  further  you  are  from  the  object  to  be  attained. 
In  a  certain  suit,  brought  within  a  few  days,  of  "  outlawing,"  the 
plaintiff  neglected  an  important  point  in  joining  the  proper  defend- 
ants, he  submitted  to  a  nonsuit.  This  barred  the  claim,  as  the 
adjourned  day  placed  it  over  six  years  past  due,  while  the  nonsuit 
was  as  though  no  proceedings  had  been  commenced.  The  true 
temper  of  the  steel  depends  alike  on  the  degree  of  heat  and  the  cor- 
rect time  to  cool  the  metal;  the  law  and  the  facts  must  be  well 
united  to  make  a  judgment  possible. 

RULE  XIX. 

Twenty  questions  of  fact,  witt  arise  to  one  of  law,  in  court  trials. 

It  is  seldom  that  cases  are  lost  on  technicalities,  more  frequently 
on  defective  proof  of  facts.  There  are  so  many  means  of  negli- 
gence, so  many  releases,  or  receipts  and  discharges,  that  lawyers 
are  often  defeated  by  some  paper  carelessly  signed,  without  con- 
sulting counsel.  In  view  of  these  facts  suitors  should  be  cautioned 


RULES  OF  PRACTICE.  221 

early  in  the  case  to  leave  all  settlements  entirely  with  their  coun- 
sel, and  never  settle  without  advice.  There  is  nothing  more  annoy- 
ing to  an  attorney  than  an  error  that  takes  his  case  out  of  court  at  the 
wrong  time,  without  securing  the  fruits  of  his  labor;  and  to  prevent 
this  he  should  instruct  his  client  to  keep  faith  with  him  and  reveal 
all  matters  in  confidence,  good  or  bad,  and  conceal  nothing  in  the 
case  essential  to  be  known.  The  more  thoroughly  the  facts  are 
prepared  and  studied,  the  more  certain  will  be  the  result.  If  a 
case  fail  by  a  law  point  that  no  one  can  foresee  or  prevent,  counsel 
should  never  be  blamed  for  it.  But  a  failure  on  a  point  of  fact 
that  could  be  foreseen  is  an  act  not  often  forgiven. 

RULE  XX. 

See  that  you  do  your  work  well. 

It  brings  business.  To  give  one  rule  for  increasing  business, 
embodied  in  two  words,  I  would  say:  Be  thorough.  A  well  made 
deed,  abstract  or  paper,  will  bring  other  like  work  to  an  office.  A 
well  tried  case,  fully  and  forcibly  put,  will  bring  other  suits. 
"  That  is  the  way,"  said  a  listener,  "  that  I  would  like  my  suit  tried 
if  I  had  one."  He  is  a  worker,  is  a  recommend  for  a  lawyer;  he 
makes  his  client's  case  his  own,  is  better;  he  wins  his  case,  is  still 
better !  But  no  one  can  win  cases  without  work.  Great  efforts 
are  made  after  long  study.  Judge  Comstock  worked  seven  weeks 
in  the  Tweed  case,  citing  over  five  hundred  authorities,  and  when 
he  reached  the  end  of  his  brief,  saying,  to  the  Court  of  Appeals, 
"  And  from  all  these  cases  but  one  conclusion  can  be  reached,  and 
that  is,  that  every  man  charged  with  an  offense  against  the  law  is 
entitled  by  the  constitution  to  a  fair  and  impartial  trial  by  jury, 
for  each  offense,  to  the  right  of  challenge,  the  right  of  counsel,  and 
to  be  confronted  by  witnesses  in  every  case,  but  in  this  case  it 
was  sought  to  annul  these  rules,  and  by  conviction  on  one  offense, 
multiply  it  by  fifty-five!  and  imprison  the  respondent  beyond  the 
term  of  his  natural  life;  and  having  suffered  more  than  one 
sentence  already,  we  conclude  he  has  paid  the  penalty,  he  has 
suffered  long  and  patiently,  and  should  be  released  and  set  free!" 
The  court  sustained  this  view,  but  other  suits  followed. 

RULE  XXI. 

Hold  on  hard  to  the  strong  points  of  law  and  fact. 

It  is  related  of  Mr.  Lincoln  that  he  seemed  utterly  regardless  of 
little  points,  holding  to  the  core  of  his  case,  and  winning  by  his  lib- 


222  MODERN  JURY  TRIALS. 

erality  and  fairness.  In  the  trial  of  disputed  bills  he  would  waive 
interest  or  forego  trifles,  from  time  to  time,  until  the  close,  when 
he  would  bend  to  his  work  of  winning  the  main  issue  with  a  deter- 
mination seldom  witnessed,  and  having  wou  the  jury  by  good 
humor,  he  would  fasten  their  judgment  on  the  sum  he  demanded. 
The  higher  one  rises  at  the  bar,  the  less  is  known  of  little,  quib- 
bling demands  and  defenses.  In  the  "  upper  stories  "  men  battle  for 
principles  and  property  with  manly  weapons,  as  will  be  seen  by  the 
efforts  of  Stanley  Matthews,  Gen.  Butler,  Arnold,  Hendricks, 
Carpenter  and  Judge  Chipman,  and  many  others  referred  to 
throughout  this  volume. 

If  there  is  one  maxim  more  to  be  remembered  than  others,  in 
practice,  it  is,  "  BB  THOROUGH."  Is  it  a  demand  to  collect  ?  Get 
it  admitted;  get  it  secured;  never  higgle  over  trifles;  watch  the 
main  chance.  Is  it  a  compromise  between  neighbors  ?  reach  a  just 
settlement  and  insist  upon  it.  Is  it  a  breach  of  contract  ?  make 
whole  the  injured  party.  Is  it  a  family  difference  ?  end  the  litiga- 
tion. Is  it  the  liberty  of  a  man  in  chains  ?  show  him  to  the  jury  in 
his  noblest  manhood — surround  him  in  court  by  his  friends  and 
neighbors;  tell  what  is  good  of  him;  assume  not  that  he  is  wholly 
innocent,  but  that  he  may  not  have  been  proven  guilty.  The  sacred 
calling  of  a  lawyer  imposes  earnestness  of  manner,  study  and 
ingenuity,  tact  and  energy,  and  a  heart  full  of  love  and  loyalty 
for  right,  and  with  them  every  promise  should  be  kept  as  inviolate 
as  if  made  under  a  solemn  oath.  'Tis  said,  "The  accusing  spirit 
that  flew  up  to  Heaven's  chancery  with  the  first  oath,  blushed  as 
he  gave  it  in,  and  the  recording  angel,  as  he  wrote  it  down, 
dropped  a  tear  upon  the  word,  and  blotted  it  out  forever  I " 


IDEAL  CASES.  223 


IDEAL    CASES. 


The  rosy  life  of  a  lawyer  is  all  in  imagination.  What  appears 
to  be  ease  and  comfort  is  anxiety  and  dread  of  defeat.  The  very 
uncertainty  of  every  suit  makes  all  good  lawyers  anxious.  No 
one  can  predict  with  certainty  what  twelve  men  may  decide,  and 
when  young  men  seek  this  field  as  an  easy  pursuit,  they  fail  to 
comprehend  its  true  business. 

It  is  not  a  lucky  profession,  as  some  may  hope  or  dream,  while 
in  college.  The  luck  of  law  is  the  work  and  tact  of  the  attorney; 
or  the  right  side  he  happens  to  have  in  court.  There  are  five  hun- 
dred vexatious  cases  to  one  ideal  jury  trial.  And  yet  men  go  on 
believing,  year  after  year,  that  once  admitted,  the  first  client  that 
opens  the  door  will  be  the  bearer  of  a  brilliant  effort  that  shall 
clear  some  helpless,  pitiful  soul,  before  a  jury  and  an  applauding 
public,  who  will  ever  after  come  with  more  and  more  just  like  it, 
and  make  their  law  practice  a  perfect  paradise. 

True,  a  man  may  have  an  extra  good  case,  once  in  a  half  dozen 
years,  sometimes  once  in  a  score  or  more  of  years,  and  some  may 
never  reach  a  golden  opportunity — very  many  never  do. 

The  romance  of  law  is  fast  disappearing  ;  juries  are  not  very 
much  deceived  by  heated  arguments,  except  in  rare  instances.  The 
public  press,  and  public  opinion,  have  much  to  do  with  jury  ver- 
dicts. Here  and  there  may  be  found  a  peculiar  fraud  or  murder 
ease  that  awakens  sympathy,  but,  like  the  Vanderpool  cases  in 
Michigan  ;  the  Beecher  case  and  the  McFarland  trial  in  New  York, 
and  Mary  Harris  at  Washington,  their  verdict  is  well  known  long 
before  the  jury  retires.  It  is  in  the  air  ;  no  one  is  surprised  at  dis- 
agreements when  the  public  have  already  taken  separate  sides,  and 
intelligent  sentiment  stands  divided. 

Luck,  without  work,  will  not  be  attained ;  honest  work,  well 
done,  will  in  time  gain  place  for  a  limited  number,  but  the  longer 
we  live,  the  older  the  country  grows,  the  more  work  is  required  in 
the  legal  profession  Men  are  better  educated,  better  skilled,  and 
are  making  better  time,  just  as  trained  trotting  horses  are  improved 
by  practice.  We  are  learning  that  the  world  moves  in  all  its  varied 
departments — social,  moral  and  intellectual. 

The  giants  in  the  court-room  to-day  are  not  the  witty  jokers,  the 
hair-splitters  or  the  tricksters  or  attorney-generals  of  crime.  The 
business  of  the  law  has  passed  all  such  artifices.  It  is  serious, 


224  MODERN  JURY  TRIALS. 

solid  business.  It  means  the  making  of  wills  (and  breaking  them), 
the  management  of  estates,  the  drawing  of  partnership  and  corpor- 
ation contracts,  the  drafting  of  charters,  the  perfection  of  titles, 
the  leasing  and  conveyance  of  lands,  and  occasionally  a. contested 
case,  in  all  of  the  courts,  from  lowest  to  highest.  Medium  oppor- 
tunities are  many  ;  ideal  opportunities  are  rare.  It  is  the  well- 
made  plea,  the  well  drawn  paper,  the  careful  counselor,  that  keeps 
his  client  free  of  suits,  that  is  marching  in  the  front  of  legal  busi- 
ness, year  by  year. 

The  widow's  son  is  not  claiming  our  protection.  The  business 
man  is  turning  to  the  bar  for  safety  and  assistance.  A  change  has 
come  over  the  spirit  and  practice  of  the  law  equal  to  any  advance 
in  either  of  the  sciences.  Books  have  accumulated  until  to  know 
their  titles  is  beyond  the  ordinary  memory  of  man.  The  time  has 
come  when  the  student  of  law  is  a  student  on  business  principles, 
when  his  word  must  be  sacred,  when  his  advice  must  be  reliable, 
when  his  income  will  depend  on  his  thoroughness  in  detail  and  a 
knowledge  of  his  own  times,  and  not  on  the  worn-out  eloquence  of 
other  ages  repeated  to  juries.  Skill,  science  and  adaptation  are  the 
sterling  qualities  to  be  cultivated. 

Ideal  cases  may  be  created  from  common  practice  with  rare 
application,  skill  and  acumen,  so  that  the  art  of  the  advocate  will 
transform  a  common  case  to  an  ideal  trial — something  nearer  per- 
fection than  ordinary  practice.  The  beauty  of  the  work  is  in  the 
construction  of  the  building,  not  in  the  material,  the  location  or 
even  the  plan  alone,  but  the  uniform  symmetry  of  all  its  plans  and 
proportions,  skillfully  executed. 


WINNING   CASES. 


Cases  are  seldom  won  by  accident — more  frequently  by  hard 
work.  The  midnight  oil,  the  well  made  brief,  the  candid  and  even 
tempered  witnesses,  the  fairness  of  the  attorney,  carrying  convic- 
tion to  the  minds  of  a  jury,  the  art  of  putting  things  in  their 
strongest  light,  all  tell  with  a  jury.  A  few  instances  may  be 
instructive. 

Walker,  a  builder,  sued  for  overwork  done  on  a  dwelling.  The 
defendant  showed  receipts  for  nearly  enough  to  balance  her  bill, 


"WINNING  CASES.  226 

and  proved  by  strong  oral  evidence  (by  members  of  her  family), 
that  everything  had  been  paid  for  as  contracted,  but  not  all  of  the 
work  done  according  to  the  agreement.  A  builder  was  called  to 
examine  the  work  and  make  careful  measurement.  The  result  was: 
a  house  six  inches  too  low,  \vindows  on  weights  instead  of  French 
windows  on  hinges,  and  many  material  defects  of  workmanship. 
The  claim  was  $300.  Item  by  item  was  carefully  scrutinized  ;  a 
chimney  too  short — a  cornice  defective — all  shown  by  builders  and 
experts.  But  the  climax  was  reached  when  the  defendant  herself, 
an  illiterate  woman,  was  called  to  testify.  She  knew  nothing  of 
books  or  architecture  or  the  "  pictures  he  made  on  paper,"  but  she 
was  sure  plaintiff  had  made  the  house  entirely  contrary  to  his  bar- 
gain, for  the  windows  should  reach  clear  to  the  floor,  for  she  told 
Mr.  Walker  so,  and  told  how,  if  they  had  a  death  in  the  family  and 
wanted  to  take  a  coffin  out  on  the  porch,  the  French  windows 
would  open  like  a  door  and  let  it  out  without  cramping  around  in 
a  narrow  hall  and  bruising  the  edges  of  the  coffin  all  up !  This 
settled  all  with  the  jury,  who  said,  "  No  cause  of  action,"  and  the 
woman  went  away  happy  ! 

Governor  Wisner  was  a  witty  man,  and  had  a  rare  way  of  win- 
ning cases.  He  was  retained  for  The  People  in  an  arson  case  at 
Pontiac,  where  the  fire  was  started  in  a  haystack.  Nothing  was 
traced  of  the  guilty  party  save  tracks  in  the  snow,  which  fitted  well 
to  the  defendant's  heavy  stogies.  A  great  effort  was  made  to 
show  that  the  fire  was  from  spontaneous  combustion — the  act  of 
the  Almighty — and  could  not  defeat  the  insurance.  Gov.  Wisner 
said :  "  That  all  may  be,  gentlemen.  It  may  be  the  act  of  the 
Almighty,  but  I  never  knew  of  His  setting  fire  to  a  haystack  and 
then  walking  three  tiroes  around  it  with  a  pair  of  stogy  boots  on, 
nailed  in  the  heels  /"  He  won  his  case. 

THB  BIBLE  IN  COURT. 

The  governor  was  great  with  Bible  quotations;  he  would  use 
them  in  common  assumpsit  trials.  One  day,  in  a  suit  for  wages, 
he  grew  very  much  excited,  and  said,  "  That's  the  doctrine;  that's 
the  pure,  biblical  doctrine,  gentlemen  !  If  a  man  will  dance,  he 
must  pay  the  fiddler!"  "Where  will  I  find  that?"  said  the  oppo- 
site counsel.  "What  chapter  in  the  Bible,"  added  the  judge,  "do 
you  refer  to,  Mr.  Wisner?"  The  governor  drew  himself  up  with 
great  dignity,  and  said:  "  Is  it  possible,  your  honor;  is  it  possible! 
that  you  have  been  a  judge  for  twenty  years,  and  my  brother  a 
lawyer  thirty  years,  and  both  in  such  utter  ignorance  of  an  old, 
familiar  scripture  quotation  like  that  f  "  He  won  again. 
15 


226  MODERN  JURY  TRIALS. , 


TWO   WITNESSES   TO   ONE. 

A  suit  was  brought  to  recover  for  a  quantity  of  apples,  shipped 
from  Davenport  to  Detroit.  The  plaintiff  alone  swore  to  his 
claim,  and  rested.  Two  witnesses  appeared  for  the  defense,  and 
claimed  the  condition  of  the  goods  was  none  the  best.  The  case 
looked  doubtful,  when  the  plaintiff's  attorney  told  the  following 
story,  which  dissolved  the  court,  jury  and  spectators  in  a  hearty 
laugh,  and  the  plaintiff  took  judgment  for  the  full  value  of  his 
apples.  The  story  was  of  a  Hebrew  merchant  in  New  York,  who 
dealt  in  furniture.  On  his  way  home,  a  down-town  clerk  stopped 
in  front  of  a  store  door,  and  looked  over  a  bedroom  set  worth  eighty 
dollars,  and  remarked  to  the  dealer  that  he  admired  the  patterns 
and  the  curl  of  the  walnut  very  much,  and  asked  if  eighty  dollars 
was  the  lowest  figure,  which  he  found  was  the  case.  The  clerk 
went  home  and  mentioned  the  fact  to  his  wife.  On  his  return 
home  at  night,  he  found  the  bedroom  set  had  been  put  up  in  his 
house  in  his  absence.  His  wife,  supposing  it  was  a  surprise  for  her, 
seemed  delighted. 

But  he  denied  buying  it.  It  occurred  to  him,  however,  that  he 
had  better  consult  a  lawyer,  and  learn  his  legal  rights  in  the  mat- 
ter. He  remembered  a  newly  admitted  friend  in  a  prominent 
office,  and  stated  his  case  to  him  fully.  The  lawyer  said:  "  You 
keep  the  goods,  and  leave  the  rest  to  me." 

Not  long  after  a  summons  was  served.  This  he  took  to  his  lit- 
tle lawyer,  and  asked  what  else  was  to  be  done,  for  it  looked 
serious. 

"  O,  nothing,"  said  the  attorney;  "  leave  it  all  to  me;  I'll  look  out 
for  him." 

"But  don't  you  want  witnesses  ?" 

"No;  leave  that  to  me." 

Trial  day  came  and  passed,  and  the  clerk  grew  anxious.  He 
called  to  hear  the  result  of  the  suit,  and  expecting,  of  course,  he 
was  beaten.  "How  did  it  come  out?"  he  inquired  of  the  young 
Blackstone. 

"All  right,"  said  his  counsel;  "the  furniture  is  yours." 

"But  what  have  I  to  pay  for  it?" 

"Nothing!" 

"How  can  that  be?" 

"  O,  easy  enough.  You  see,  he  swore  you  bought  the  goods.  I 
didn't  say  anything;  that  was  all  right  enough.  He  had  no  wit- 
nesses but  himself.  I  admitted  the  buying;  but  I  put  on  two  roit- 


SELECTING  A  JURY.  227 

nesses  who  swore  they  saw  the  whole  transaction,  and  knew  you 
paid  for  the  goods  !  Of  course  I  won.  How  can  one  man  swear 
against  two,  anyway  ?  " 


SELECTING  A  JUKY. 


To  exclude  two  jurymen,  without  cause,  in  civil  suits,  and  thirty 
in  murder  cases  and  high  crimes,  is  a  work  of  more  importance 
than  any  one  act  of  the  trial — not  even  excepting  the  argument. 

Men  are  all  human.  They  carry  their  prejudices  to  church,  to 
mill  and  to  court,  as  much  as  they  carry  their  arms  and  hands  with 
them.  Some  are  hardened  by  unbelief  in  human  nature;  some  are 
crippled,  disordered  and  impatient;  some  are  lifeless,  and  with  all 
the  milk  of  human  kindness  lacking  in  their  nature;  some  are 
noble,  generous,  humane  and  open-hearted;  some  with  reason, 
others  are  set  and  determined.  Lawyers  should  prefer  reasonable, 
merciful,  enjoyable,  liberal,  intelligent  jurymen,  absolutely  free 
from  bias  or  distrust.  It  is  generally  known  that  ex-policemen, 
ex-sheriffs  and  ex-justices,  with  other  like  ex-officials,  have  imbibed 
a  deep-seated  prejudice  for  the  plaintiffs  whom  they  have  served  so 
long;  while  laboring  men  prefer  their  kind,  and  each  nationality 
will  in  some  degree  stand  together.  So  in  criminal  defenses  and 
civil  suits,  these  points  should  be  always  remembered. 

But,  presuming  the  justices,  policemen,  sheriffs  and  deputies  are 
excluded,  and  only  the  honest  twelve  remain,  who  of  these  are  to 
be  chosen  ?  Why,  look  at  them  !  Mark  their  candor,  age,  humor, 
intelligence,  social  standing,  occupation,  and  let  your  eyes  choose 
the  most  friendly,  liberal  and  noble  faces — young  or  old,  but  bet- 
ter young  than  old — better  warm  than  cold  faces;  better  builders 
than  salesmen,  better  farmers  than  inventors,  better  good,  liberal 
dealers  than  all.  Avoid  doctors,  lawyers  and  pettifoggers.  There 
is  a  little  man,  deformed,  narrow,  selfish,  opinionated.  Yonder  is 
a  captious,  caustic,  witty  man,  of  stale  jokes  and  street-corner 
arguments;  and  further  on  is  a  hard  man,  grim-faced  and  cold, 
grey  look,  white  blood  and  glassy  eyes.  Rule  them  all  off,  if  pos- 
sible. The  world  has  used  them  ill.  They  will  spread  their  misery 
for  company  sake.  If  you  have  been  wise,  you  have  looked  ahead, 
read  your  directory,  and  now  know  the  occupation  of  each.  All 


228  MODERN  JURY  TRIALS. 

this  is  easily  done.  Jurymen  are  usually  well-known  men,  distin- 
guished for  wit,  humor,  wealth  or  business  dealings.  Chronic 
hangers-on,  unless  clear-headed,  can  easily  be  excluded. 

I  have  known  a  sailor  on  a  jury  to  acquit  a  sailor  charged  with 
crime.  He  was  clear  on  the  case.  A  wrestler  once  turned  a  suit 
for  the  plaintiff  by  showing  a  jury  how  it  was  done;  he  was  one  of 
them.  In  a  robbery  case,  defendant  gave  evidence  to  show  that  he 
won  the  money  at  draw  poker.  A  keen  juryman,  who  understood  the 
game,  plied  complainant  with  questions,  and  drew  out  that  he  liked 
poker — went  to  defendant's  room  and  played,  and  remarked,  "  I  am 
beaten  at  my  own  game,"  and  although  the  amount  won  was  over 
eight  hundred  dollars  in  bills,  a  gold  watch,  revolver  and  a  twenty- 
dollar  gold  piece,  the  poker-playing  juryman  convinced  the  rest 
that  the  exciting  game,  and  not  the  offense  charged,  was  a  clear 
solution  of  the  so-called  robbery. 

Many  a  builder  or  expert  has  changed  the  whole  twelve  by 
knowing  the  case.  Too  much  could  not  be  said  on  a  wise  selection 
of  jurors. 


CEOSS-EXAMINATION. 


The  object  of  cross-examination  is  three-fold.  First,  to  elicit 
more  truth;  second,  to  contradict  and  confuse;  third,  to  lay  a  foun- 
dation for  impeachment.  If  a  witness  has  concealed  a  part  of  the 
truth,  material  to  your  case,  and  looks  like  one  who  would  be  fair, 
it  is  better  to  pursue  the  inquiry  moderately  at  first,  and  if  the  wit- 
ness quibbles,  the  more  rapidly,  and  if  he  angers,  still  more  rap- 
idly, as  one  in  anger  will  speak  out  openly,  but  usually  he  will  tell 
more  by  kindness. 

To  contradict  a  witness  by  his  own  mixed  statements,  a  most 
rigid  and  rapid  examination  is  required,  usually  asking  for  an 
answer  the  opposite  of  what  you  seem  to  desire,  as  the  witness  will 
invariably  oppose  the  theory  of  the  examiner;  combativeness  comes 
out  on  the  witness  stand.  One  who  answers  willingly,  and  one 
who  answers  fairly  and  candidly,  had  better  both  be  left  alone, 
One  who  higgles,  gets  excited  and  petulant  has  something  he  wants 
to  shut  out,  will  bear  urging.  "  Do  you  swear  on  your  oath  that 


SELECTING  A  JURY.  229 

ihis  is  the  real  language  used?"  will  generally  bring  out  the  fact; 
but  kindness,  rather  than  rashness,  is  to  be  practiced. 

Suppose  the  witness  to  be  old — then  by  all  means  be  courteous. 
Suppose  it  be  a  lady,  observe  the  same  rule.  Suppose  it  to  be  a 
timid  boy  or  girl — some  juryman  has  such  a  child,  and  if  you 
offend  he  is  offended;  hesides  "children  and  fools  tell  the  truth," 
and  you  are  looking  for  truth.  Nature  is  the  child's  instructor. 
It  is  not  likely  that  anyone  will  prolong  an  examination  far 
beyond  favorable  answers,  and  still  to  leave  off  at  the  sharp  point 
is  always  essential.  Quit  with  a  victory,  is  the  best  of  all  rules. 

Juries  look  for  sharpness,  but  admire  fairness.  They  like  candor, 
and  respect  shrewdness.  Their  sympathy  is  strong  for  children 
and  aged  witnesses.  See  that  you  do  not  offend  good  taste  and  a 
high  sense  of  honor  and  fair  play.  To  impeach  a  witness  a  good 
foundation  must  be  laid  in  time,  as  "  Did  you  not  (at  a  time  and 
place  named)  tell  William  Allen  that  you  owed  this  claim?  Did 
you  not  say  to  Alfred  Hall,  on  Bond  street,  July  4th,  1880,  that 
you  knew  the  defendant  was  not  guilty;  that  Tie  did  not,  but  you 
knew  who  did  do  the  shooting  ?"  "  Did  you  tell  Albert  Miller,  OH 
the  eighteenth  day  of  June,  in  his  store  on  Crescent  street,  that 
there  was  a  fraud  in  this  transaction  which  could  all  be  explained  ?" 
"  Have  you  not  openly  asserted  yourself  as  an  enemy  to  defendant 
during  this  trial,  and  expressed  a  hope  that  he  would  be  defeated  ?" 
"  Did  you  not  offer  to  shade  your  testimony  in  this  case  for  money  ?  " 
Some  strong,  leading  and  exasperating  questions  may  be  asked  of 
one  you  know  can  be  impeached.  Nothing  should  be  handled  with 
gloves  where  one  is  openly  your  enemy.  Strike  quick;  hit  hard, 
with  weapons  that  sting,  and  juries  will  see  that  you  mean  what 
you  say.  But  an  attack  on  a  witness  without  foundation  is  dan- 
gerous. 

And  finally,  more  cases  are  lost  by  cross-examination  than  gained 
by  it;  so  that  in  general  one  must  depend  upon  his  own  evidence, 
and  not  upon  an  often  mistaken  notion  that  men,  having  stretched 
the  truth  to  gain  a  point,  will  turn  and  contradict  it,  to  please  a  law- 
yer. Witnesses  who  will  tell  a  story  without  oath  will  swear  to  it, 
and  adhere  to  it,  and  intensify  it,  by  repeating  it  thi-ough  a  long 
cross-examination.  This  was  never  more  clearly  shown  than  in  the 
exhaustive  examination  of  Frank  Moulton  and  Mr.  Beecher,  in  the 
tedious  Beecher-Tilton  suit,  at  Brooklyn,  in  which  the  ablest  cross- 
examiners  failed  to  impeach  either  witness. 


230  MODERN  JURY  TRIAL& 

THE  LUCK  OF  LAW. 


To  the  student  at  law,  and  to  many  men  outside  of  the  profes- 
sion, an  ideal  lawyer  is  a  great  orator. 

In  the  days  of  Webster  and  Choate,  or  the  earlier  ages  of  history, 
such  a  character-  was  worshiped  almost  as  a  hero.  But  learning 
and  the  press,  the  power  of  print  and  the  greater  development  of 
mankind,  as  a  mass,  have  very  much  weakened  the  influence  of 
eloquence. 

Within  the  last  dozen  years  it  has  become  more  clearly  apparent 
that  evidence,  and  not  eloquence,  prevails;  and  he  that  has  weighed 
most  carefully  the  history  of  cases,  for  the  last  half  century,  will 
bear  witness,  that  more  than  one  case  is  decided  by  the  overpower- 
ing sentiment  of  communities  outside  of  either  eloquence  or  evi- 
dence. 

To  be  a  little  more  explicit,  the  science  of  success  in  the  depart- 
ment of  law  is  rapidly  changing  to  business  principles.  An  active, 
energetic,  thorough  and  determined  lawyer  will  succeed  in  his  busi- 
ness, very  largely  in  proportion  to  the  capital  he  employs  and  the 
energy  he  expends  in  his  calling. 

The  term  capital,  in  law  practice,  relates  as  much  to  character 
and  cultivated  judgment  of  men  and  things  as  to  any  other  degree 
of  legal  attainment.  Indeed,  it  is  the  business  lawyer,  with  a  com- 
mon sense  view  of  general  subjects,  and  not  the  stickler  on  trifles, 
that  makes  his  mark  in  the  courts  and  in  the  world.  He  who  will 
trust  cases  to  men,  should  study  the  character  he  confides  in. 

In  the  majority  of  trials,  twenty  times  as  many  questions  of  fact 
as  of  law  will  arise,  and  he  that  is  most  thorough  in  fact  will  be 
most  likely  to  win.  This,  then,  is  the  secret  of  the  whole  matter. 
Earnest  attention  to  details,  thorough  arrangement  of  evidence, 
coolness  and  absence  of  anger  and  excitement,  brevity  and  clearness 
of  argument,  honesty  and  fairness  of  statement,  firmness  and  deci- 
sion of  judgment,  a  reliance  on  reason,  rather  than  the  biased 
opinion  of  your  over-zealous  client,  and  a  deliberate  determination 
to  do  right. 

Eloquence  should  never  be  forgotten;  there  are  subjects  in  them- 
selves eloquent.  It  is  not  in  words,  but  in  the  man,  and  of  the  man 
and  from  the  man,  and  in  the  occasion,  that  eloquence  is  born.  It  is 
never  premeditated,  but  born  of  the  theme  and  in  the  counsel.  But 
eratory  is  studied,  mastered  and  held  in  readiness  for  rare  occasions. 


THE  LUCK  OF  LAW.  231 

As  nothing  should  be  done  to  discourage  eloquent  appeals,  so 
nothing  need  be  said  to  imbue  attorneys  with  an  over-value  of,  or 
reliance  upon  it  to  win  in  a  lawsuit.  The  best  advocates  and  ora- 
tors are  well  stocked  with  apt  quotations  in  prose  and  verse,  and 
add  force  to  their  reasons  by  happy  thoughts  of  other  men,  ingeni- 
ously interwoven  in  argument.  On  great  occasions  and  in  great 
cases,  the  subject  itself  may  furnish  all  the  eloquence  demanded. 

In  a  celebrated  case  in  Indiana,  a  statesman  was  pitted  against  a 
country  attorney,  whom  all  expected  to  be  beaten,  if  not  annihil- 
ated. The  case  proceeded.  The  country  boy  was  quiet,  but  clear 
and  determined.  He  made  his  modest  opening,  and  waited  for  the 
thunder  of  the  orator  ;  but  it  was  like  a  lion  tamed  by  kind  usage; 
the  strength  of  the  statesman  lacked  a  forum  for  display.  He 
forced  his  plea  upon  the  jury  and  they  shed  tears.  He  urged  his 
client's  cause  in  all  general  ways,  and  just  enough  to  heat  his  little 
opponent  to  a  speaking  point.  The  country  boy  stood  up,  stam- 
mered (purposely,  I  have  since  thought)  and  stumbled  a  little,  but 
clearing  his  boat  from  the  shore,  he  launched  off  and  out — ouf 
smoothly — through  the  long  conflicting  proof,  picking  up  every 
point,  commenting  on  it  in  the  keenest,  closest  style,  building  such 
a  fire  of  the  little  sticks  and  floodwood  gathered  by  the  way  that 
by  the  light  of  a  blazing  sun  at  mid-day,  none  could  see  the  mur- 
derer and  his  victim  plainer  than  by  the  boy's  description  of  the 
tragic  scene.  The  tragedy  was  recast,  the  fire  and  fervor  of  a  boy's 
warm  heart  was  blazing  in  every  character,  speaking  from  his  eyes 
and  hands  and  face.  The  jury  forgot  the  statesman,  forgot  the 
defense,  forgot  all  but  the  ghastly  deed,  held  up  in  such  an  artful, 
unerring,  vivid  manner,  that  a  shudder  ran  round  and  round  the 
court-room,  by  every  new  discovery.  He  sank  exhausted,  and  con- 
viction followed. 

It  was  a  flash  of  lightning  from  a  cloudless  sky — but  the  boy 
had  remembered  his  case  ;  had  dreamed  it  out,  thought  it  over, 
studied  it,  kept  his  proof  like  a  polished  knife,  and  pushed  it 
to  the  hearts  of  the  jury  unawares.  It  was  another  David  with 
his  little  sling  and  five  smooth  stones,  striking  where  no  armor 
had  been  made. 

And  this  is  the  luck  of  law.  The  luck  is  work  ;  the  luck  is  tact; 
the  luck  is  ingenuity  ;  the  luck  is  in  bringing  law  to  a  court  with 
wisdom,  discretion,  power  and  logic,  tact  and  genius,  well  com- 
bined/ and  bringing  facts  to  a  jury  in  the  clearest,  plainest 
simplest  possible  light,  to  convince  and  decide  for  your  client's 
cause.  It  will  not  do  to  guess ;  he  must  work ;  I  repeat  it,  he 
must  work  to  win  ! 


282  MODERN  JURY  TRIAIA 


REACHING  A  JURY. 


The  peculiar  nature  of  many  jury  cases  demands  a  diversity  oi 
talent.  The  words  that  win  with  one  man  may  shoot  clear  over 
another's  head,  but  most  men  relish  quaint,  short  stories,  little 
illustrations — things  that  impress  the  thought  and  rivet  the  atten- 
tion, plow  and  prepare  the  ground,  and  render  the  mind  mellow 
and  attentive.  It  is  not  the  voice  of  a  speaker,  nor  his  grace  and 
manner,  nor  his  eloquence  nor  greatness,  but  his  sagacity — the 
things  aptly  put,  the  terse,  crisp  sayings,  that  cut  in  and  clinch, 
that  turn  a  jury.  A  German  client  once  said  :  "I  likes  to  hear  dot 
man  ;  Oh  !  he's  such  a  purty  talker ;  but  I  don't  know  what  he 
say  !"  No  worse  censure  of  a  speech  could  be  mentioned.  Dull 
ness  is  even  better,  if  remembered. 

An  eminent  advocate  talks  to  one  juror  at  a  time,  and  never 
more  than  one  ;  talks  on  and  on,  until  there  is  a  real  spring  of 
emotion  or  reason  or  humor,  and  he  has  reached  it,  and  passing 
gently  to  one  who  seems  to  listen  well,  he  finally,  one  by  one,  has 
personally  addressed  the  whole  twelve,  and  won  the  twelve. 

Successful  advocates  seldom  trifle  with  jurors  or  wrangle  in  their 
presence.  They  yield  an  unimportant  point,  and  pass  to  deeper 
subjects,  never  covering  the  ear  by  too  much  husk.  Mr.  Charles 
O'Connor  is  of  this  class  ;  Mr.  Evarts  not  quite  so  clear  ;  Mr. 
Beach,  very  eloquent,  often  grows  rhetorical ;  Senator  Voorhees 
always  so  ;  Col.  Ingersoll  is  terse,  pointed,  apt  and  humorous — 
sometimes  pathetic  ;  Mr.  Lincoln  was  quaint  and  used  all  the  catch 
words,  and  common  words  of  farmers  and  tradesmen,  to  whom  he 
spoke.  He  constantly  illustrated  his  thoughts  by  little  incidents. 
Take  out  the  stories,  and  his  arguments  would  fail.  It  was  the 
noble  nature  of  a  noble  man — one  they  knew  believed  in  his  case  ; 
one  they  relied  upon  implicitly  ;  one  who  spoke  as  well  for  a  poor 
car-driver  as  a  railroad  king.  His  plan  never  changed.  It  was 
universal. 

But  PLACE,  as  well  as  method,  must  govern  an  advocate  ;  the 
picture  in  Harper's  of  a  New  York  dandy,  on  his  first  entrance  to 
Leadville,  with  silk  hat,  kid  gloves,  and  soft  Morocco  leather  hand- 
case,  would  be  a  poor  picture  of  a  frontier  lawyer  before  a  Texas 
or  Dakota  jury.  Nothing  could  be  surer  of  defeat  than  a  case 
tried  by  such  an  advocate. 


REACHING  A  JURY.  233 

The  accomplished  scholar  is  too  fond  of  saying,  "The  jury 
system  is  a  farce — a  humbug — a  relic  of  the  past."  It  is  the 
abuse  of  the  system,  and  not  the  law,  that  gives  it  a  bad  name. 
From  careful  observation  in  a  score  or  more  central  States,  jury 
trials  are  generally  fair  representations  of  public  sentiment.  Who 
can  expect  twelve  men  to  agree  on  what  the  public  are  equally 
divided  upon,  to  begin  with  ?  Shall  jurors  be  censured  for  true 
independence  ?  or  shall  they  be  blocks  and  stones,  and  never  vary 
in  opinions  ?  I  fear  that  too  many  adverse  criticisms  made  by  lit- 
tle thinkers  on  juries  are  in  a  narrow  groove.  The  principle,  as  a 
principle,  is  right  in  all  matters  of  personal  liberty,  or  personal 
injury,  but  may  be  imperfect  in  commercial  accounts.  In  cases  of 
liberty,  twelve  men  should  unite  or  no  conviction. 

And  even  if  it  should  be  that  extra  talent  and  eloquence  are 
demanded,  these  special  cases  will  come  nearer  the  middle,  or  the 
end,  of  a  lawyer's  life.  Great  cases  command  great  men.  Young 
lawyers  can  hardly  hope  to  step  to  the  highest  round  of  the  ladder 
from  the  lowest.  Time,  patience,  long-continued  study  and  prac- 
tice will  bring  their  reward,  but  not  one  lawyer  in  every  hundred 
will  reach  the  dream  of  greatness  that  his  early  fancy  has  created. 

In  all  this  there  is  still  hope  for  the  diligent.  By  accident,  one 
may  be  drawn  into  a  legal  duel  unawares.  He  may  settle  in  a  new 
State,  beyond  the  reach  of  counsel,  where  his  effort  is  the  sole 
dependence  of  an  unfortunate  client;  he  may  be  called  suddenly 
to  duty.  The  confusion  of  a  great  event  will  tax  him  to  his 
utmost,  and  for  this  he  should  always  be  ready.  The  forms  of 
pleading,  rules  of  practice  and  means  of  information,  and  even  the 
hints  and  examples  from  great  men's  experiences,  will  be  an  anchor 
for  a  storm,  if  demanded.  To  make  this  anchor,  and  fix  these  rules 
and  maxims,  speeches  and  sentiments  well  in  the  mind,  is  the  work 
of  patient,  painstaking  study;  but  to  make  the  study  interesting 
some  of  the  ideal  practice  herein  described  may  be  useful  and 
inspiring.  No  one  can  read  an  eloquent  argument  and  be  unmoved 
by  it.  The  mind  grows  by  what  it  feeds  on.  The  sympathies 
expand,  the  heart  warms,  by  kindling  its  tenderest  impulses;  the 
judgment  is  stronger  by  feeling  that  another  thinks  as  we  do;  the 
picture  of  a  possibility,  the  straining  and  lofty  aspirations  of  the 
mind  are  like  a  new  discovery,  and  the  world  grows  broader  to  a 
well-learned  man. 

Every  new  book  digested  is  a  new  friend  made.  If  the  acquaint- 
ance extends  to  the  greatest  men  of  our  times,  in  the  greatest 
events  of  court  practice,  so  much  the  better.  Aiming  at  the  high- 
est work  will  raise  us  over  the  lowest.  Musicians  listen  long,  half 


234  MODERN  JURY  TRIAL8. 

entranced,  at  the  melody  of  sweet  sounds;  painters  admire  the 
shading  of  a  landscape,  and  builders  examine  with  care  the  models 
of  architects.  While  lawyers,  too  often,  start  cases  at  random  and 
rely  on  genius  to  produce  what  by  labor  and  study  would  be  ren- 
dered almost  certain. 


THE  OTHER  SIDE. 


In  a  trial  at  court  a  great  deal  of  the  unknown  is  developed. 
Careful  preparation  will  do  much  to  avoid  surprise.  But  something 
will  always  remain  shaded,  till  the  light  of  evidence  shines  in  and 
reflects  the  true  colors  of  a  too  often  unhappy  disclosure.  The 
ingenious  thing  to  do  is  to  induce  your  witnesses  to  state,  in  candor, 
what  they  generally  avoid  beforehand.  In  criminal  defenses,  the 
worst  is  seldom  known  before  trial,  and  hence  must  be  met  on  the 
instant,  and  may  be  managed  indifferently  well.  The  skill  of 
counsel  is  put  to  its  severest  test  to  meet  and  master  reverses, 
surprises  and  new  features.  As  the  mind  grows  and  strengthens 
on  familiar  subjects,  so  new  and  unlocked  for  events  are  like 
enemies  in  ambush — a  dread  to  even  the  oldest  veterans. 

Too  little  attention  is  paid  to  the  other  side — the  dark  side.  To 
excuse  the  wrong  we  seek  to  redress,  the  evil  to  be  undone,  we 
must  study  its  magnitude  and  meet  it  with  reasons.  Lawyers  of 
greatest  fame  are  greatest  in  foresight.  It  is  he  who  can  tell  us 
of  the  disease,  and  its  remedy,  that  makes  the  good  physician. 

Law  suits  are  not  debates,  that  may  be  continued  by  consent 
indefinitely.  They  are  stern  contests  of  right,  and  end  too  often  at 
a  single  hearing.  Well  may  Cicero  say,  "  How  humiliating  it  must 
be  to  an  attorney,  in  the  midst  of  a  trial,  to  find  he  knows  so  little 
of  his  case  that  his  client  is  hindered  and  not  helped  by  his  ser- 
vices.** It  must  be  painful  to  meet  abrupt  reverses,  to  trust  a 
broken  reed,  to  attempt  impeachment  and  fail,  to  attack  character 
and  lose,  to  sue  in  assault  and  be  forced  to  pay  expenses  of  a  trial 
for  lack  of  evidence,  to  study  hard  and  long  and  only  know  half  01 
his  client's  case.  Mc-n  who  keep  back  part  of  the  truth  for  the  sake 
of  over-persuading  their  counsel  that  they  are  in  the  right,  are 
justly  punished  if  defeated. 


METHOD.  235 

Nothing  helps  so  much  as  a  glance  at  the  ranks  of  the  enemy's 
lines,  a  measure  of  his  forces,  a  skirmish  just  long  enough  to  draw 
his  fire,  and  then  a  volley  to  match  it.  To  this  end,  if  no  other,  wit- 
nesses should  be  cautioned,  entreated,  urged,  forced  to  tell  the 
whole  truth  openly,  unreservedly  to  their  counsel,  for  and  against 
their  interest,  that  the  very  worst  may  be  known  and  provided  for. 

Probably  there  never  was  a  lawsuit  lost  where  all  of  the  facts 
were  known  to  counsel.  For  with  evidence  and  law  against  them, 
settlements  could  be  reached,  compromises  arranged  and  costs 
avoided. 

When  counsel  and  clients  learn  to  look  clear  through  their  cases — 
good  and  bad,  light  side  and  dark  side,  their  side  and  the  other 
side,  then  they  will  learn  the  science  of  success  in  jury  trials. 

The  books  are  full  of  law,  but  where  can  we  find  the  facts  if 
stubborn  witnesses  or  careless  suitors  will  insist  upon  telling  only 
the  bright  side  of  their  story,  leaving  the  darkness  as  a  rifle  pit  for 
the  enemy's  weapons.  Of  the  best  tried  cases  for  the  past  twenty 
years,  the  Michigan  Central  Conspiracy  furnishes  a  lasting  example 
of  industry,  tact  and  actual  ingenuity  rewarded. 


METHOD. 


Every  man  should  have  a  method  of  his  own,  and  cling  to  it  like 
a  trade  mark.  To  be  shifting  and  uncertain  in  purposes  and  plans 
is  almost  as  injurious  as  moving.  But  if  one  has  taken  the  wrong 
course,  that  every  day  carries  him  further  from  his  forte,  an  early 
change  is  desirable.  He  need  not  choose  the  style  or  practice  of  a 
bright,  shining  light  to  begin  with.  It  will  be  sure  to  make  him 
dizzy  and  bewildered.  Builders  commence  on  small  houses.  Sea- 
men and  captains,  conductors  and  generals  are  promoted  from  lower 
ranks  for  efficiency. 

As  a  rule,  we  can  take  our  lessons  from  established  teachers; 
astronomy  from  professors,  science  from  standard  authors,  finance 
from  statesmen,  anatomy  from  surgeons,  law  from  court  decisions, 
and  religious  teaching  from  the  churches.  But  we  should  not  rest 
satisfied  without  a  careful  examination  to  verify  the  correctness  of 
our  authority.  To  assume  that  all  young  men  can  start  on  a  level 
with  Webster,  Clay,  Beach  or  Butler,  and  argue  from  their  methods 


236  MODERN  JURY  TRIALS 

is  a  great  expectation.  Young  men  should  not  dream  of  it,  the 
very  thought  is  disheartening.  The  name,  the  theme,  the  charac- 
ter, all  have  a  place  in  the  life  of  a  lawyer.  The  young  man  that 
masters  a  justice  practice  in  one  year,  a  circuit  the  next,  and 
tries  an  important  supreme  court  case  in  five  years,  or  makes  a 
mark  in  high  criminal  practice  in  seven  years,  is  an  apt  and  prom- 
ising advocate. 

Many  a  young  advocate  has  heard  a  great  orator  in  some  grand 
and  powerful  effort,  that  seems  easy  to  equal;  but,  like  the  student 
who  thought  the  proverbs  of  Solomon  quite  simple,  and  was  told 
to  write  a  few,  suddenly  changed  his  curious  opinion.  This  look- 
ing at  law  from  a  mountain  top  is  pure  speculation.  He  will  find 
the  ideal  case  and  "  the  widow's  son  "  are  rarely  met  with  in  prac- 
tice. It  will  be  years  of  patient  work  and  years  of  character  build- 
ing before  he  is  trusted  in  matters  that  require  a  speech  like  Burke, 
in  the  trial  of  Hastings,  or  Butler  in  the  Johnson  impeachment. 
The  story  in  the  school  books  of  the  fence  builder,  whose  boy  was 
discouraged  at  the  long  line  of  wall  to  build,  when  the  father 
staked  it  off  into  twenty  parts,  each  part  for  a  day— is  an  excellent 
model  for  a  lawyer.  The  boy  that  had  no  hope  of  completing 
the  whole  in  twenty  days,  was  sure  that  one  twentieth  could  be 
easily  done  in  much  less  than  one  day.  The  work  was  completed 
and  the  reward  obtained. 

It  need  not  follow  that  a  brilliant  forenoon  will  bring  out  a  long, 
dull  afternoon  lawyer.  But  it  often  follows  that  a  plodding 
student  reaches  the  bench,  while' the  flashy  advocate  is  straining  his 
lungs  to  convince  an  ignorant  jury,  that  his  client  has  a  claim  to 
their  verdict.  The  fact  is,  men  are  rarely  accorded  a  double  qual- 
ity. We  credit  a  man  with  the  wisdom  of  a  judge,  who  is  still  and 
conservative  in  his  views;  who  is  neither  deep,  nor  sound,  but  looks 
wise  and  thoughtful.  Silence  often  passes  for  wisdom,  while  open 
expressions  are  looked  upon  as  lacking  in  soundness.  And  more 
than  this,  men  may  require  the  force  of  expression  and  give  them- 
selves to  deeper  study,  while  having  the  beauty  of  language,  and 
the  gift  of  eloquence,  they  may  rely  on  the  one  and  spurn  the 
other.  Many  great  advocates  have  committed  this  error. 

Few  men  have  lived  who  were  wholly  original.  Pioneers  in  their 
art,  like  Dante,  Homer,  Milton  and  Michael  Angelo,  spending  years 
on  a  single  poem  or  painting — men  who  lived  centuries  before  the 
press,  may  claim  such  an  honor.  But  business  and  professional 
men  are  willing  to  study  the  fine  art  of  success  as  the  best  means  of 
attaining  it  In  the  sense  of  teachers,  they  covet  instruction  from 
style  and  language  and  manner  of  others.  Webster's  sentences 


METHOD.  237 

were  full  of  sayings  from  Scott  and  Adams.  Erskine's  thoughts 
were  modeled  from  Milton,  and  Bacon,  and  even  Cicero  was  an 
ardent  admirer  of  eloquence  in  others  before  he  became  a  polished 
orator. 

The  same  old  royal  road  to  riches  is  gained  by  the  frugality  of  a 
Franklin,  to  knowledge  by  the  industry  of  a  Greeley,  to  character 
by  the  purity  of  a  Washington,  to  originality  by  extended  compila- 
tions like  Shakespeare,  to  greatness  by  the  goodness  of  a  Lincoln, 
and  to  perseverance  by  the  determination  of  a  Livingstone — explor- 
ing on  and  on,  with  tired  and  broken  limbs  and  bent  body,  to 
victory.  All  these  are  methods  worth  making  into  models.  Others 
in  other  stations  will  follow,  and  have  followed,  that  one  may  look 
at  and  admire  to  stimulate  his  courage  and  patience,  and  ripen  his 
knowledge,  and  such  study  need  never  decrease  his  individuality. 

Machinists  study  rival  inventions,  and  improve  them.  Advo- 
cates commit  thoughts  and  use  them,  and  add  to  their  argument 
the  weight  of  authority  that  always  attaches  to  well  quoted  para- 
graphs. In  all  this  it  may  be  the  aim  of  the  student  to  make  one 
more  man  just  as  original,  and  a  little  improvement  on  the  model 
he  learns  from.  This  is  seen  in  the  steam  engines,  the  sewing 
machines,  or  the  mighty  ironclads  of  our  navies. 

It  is  not  the  object  of  reading  to  create  a  new  character,  but  to 
round  up  the  one  we  possess.  To  study  a  thousand  speeches  need 
not  alter  the  style  of  counsel.  But  in  assuming  that  good  company 
and  good  reading  will  improve  men,  we  admit  that  the  more  we  fill 
ourselves  with  the  wisdom  of  others  the  larger  will  be  the  fund  of 
general  information. 

It  is  too  late  to  assume  that  men  are  born  great  in  our  profes- 
sion. The  greatest  lives  deny  it.  The  history  of  law  and  lawyers 
is  dense  with  examples  of  plain,  painstaking,  studious  advocates 
from  Demosthenes  down  to  our  day,  where  men  like  Stephens, 
with  just  enough  of  earth  to  cover  their  immortality,  shed  a  brilli- 
ancy of  intellect  in  the  halls  of  Congress. 

If  it  is  looking  to  models  that  improves  our  light,  like  Edi- 
son is  said  to  have  done  in  his  experiments,  the  improvement  is 
none  the  less  commendable.  The  highest  notch  cut  by  the  daring 
youth  over  the  father  of  his  country,  so  luminous  in  history,  has 
never  been  reached  in  the  legal  profession.  The  time  has  come  for 
change  and  growth  and  improvement;  the  time  will  come  when 
other  Websters,  Clays  and  Marsh  alls,  equipped  with  their  wisdom, 
and  added  learning  shall  give  us  a  new  genius  like  Burr,  or  a  saga- 
cious reasone?  like  Burke;  new  defenses,  like  Seward  wrought  out 
in  the  Freeman  case,  until  what  seems  impossible  will  be  realized. 


238  MODERN  JURY  TRIALS. 

The  art  of  the  iges,  with  the  improvement  of  science  and  applica- 
tion, with  the  dignity  of  wisdom,  the  grace  of  scholarship,  and 
sincerity  of  intense  application,  will  "  win  the  proud  trophy  of 
deserved  success." 


LAW  OFFICE,  STUDY  AND  TEIAL. 

From  Judge  0.  I.   Walker's  Ann  Arbor  University  Address,  1869. 


PROFESSIONAL  SUGGESTIONS. 

I  have  already  told  you  that  I  believe  in  the  commonplace,  and 
I  shall  demonstrate  my  t'aith  by  making  some  very  commonplace 
suggestions.  You  will  doubtless  soon  be  admitted  to  the  practice 
of  the  profession  for  which  you  have  been  preparing,  and  sooner 
or  later  will  open  an  office  for  the  transaction  of  business. 


OFFICE. 


Although  not  as  important  as  some  other  matters,  I  think  the 
manner  in  which  you  keep  your  office  is  not  unimportant.  The 
lawyer  should  remember  that  "  Order  is  heaven's  first  law,"  and 
order,  perfect  and  complete,  should  reign  in  his  office.  His  books 
and  papers  should  be  arranged  so  that  there  is  a  place  for  every- 
thing, and  everything  is  to  be  found  in  its  place.  The  time  and 
worry  saved  to  a  man,  by  habits  of  system  and  order,  can  hardly 
be  exaggerated.  Neatness,  too,  should  prevail.  Nothing  is  more 
disgusting  than  the  office  of  a  lawyer  where  the  furniture  is  covered 
with  a  heavy  coat  of  dust,  the  floor  covered  with  old  papers,  and 
the  spittoons  filthy  and  disgusting  with  the  result  of  the  use  of 
tobacco.  If  you  are  so  unfortunate  as  to  be  slaves  either  to  the 
habit  of  smoking  or  chewing,  establish  it  as  a  settled  rule  of  your 
life,  that  you  will  do  neither  in  your  office.  If  you  indulge  in  these 
habits  there,  then  every  visitor  will  feel  also  at  liberty  to  indulge 
in  the  same  filthy  habits,  and  the  result  will  be  that  your  office  will 
be  offensive  to  more  senses  than  one.  Your  furniture  should  be 
neat  and  comfortable,  and  how  expensive,  should  entirely  depend 
upon  your  business.  If  the  business  authorizes  it,  a  carpeted  room, 
good  chairs,  and  neatly  covered  tables,  aid  in  giving  character  and 
dignity  to  a  lawyer's  office. 


LAW  OFFICE,  STUDY  AND  TRIAL.  239 

I  earnestly  warn  you  against  a  practice  that  more  or  less  pre- 
vails, especially  in  country  offices.  A  set  of  idle,  clever  fellows, 
fond  of  talking,  smoking  and  chewing,  frequently  lounge  into  the 
office  of  a  young  lawyer,  especially  if  he  is  a  pleasant,  agreeable 
companion,  and  take  up  his  time  with  idle,  and  worse  than  idle, 
talk.  The  evil  is  a  very  great  one.  It  leads  to  loose  conversation, 
loose  company,  bad  habits,  and  seriously  interferes  both  with  study 
and  actual  business.  A  client  coming  into  an  office  to  see  a  lawyer, 
and  finding  it  occupied  by  idle  gossips,  will  be  very  apt  to  turn 
upon  his  heels  in  utter  disgust  and  seek  professional  advice  from 
those  who  have  no  such  surroundings.  It  is  not  entirely  easy  for 
a  lawyer,  especially  if  he  loves  approbation,  to  overcome  this  evil, 
great  as  it  is,  and  yet  it  may  and  ought  to  be  done.  A  young 
man,  although  known  to  have  but  little  business,  may  always  cour- 
teously yet  decidedly  excuse  himself  from  having  his  time  taken 
up  with  such  guests.  He  may  always  say,  "You  must  excuse  me; 
I  am  occupied;  I  am  engaged  in  study,  or  in  business,  and  have  no 
time  to  spare."  In  this  way  he  will  gain  the  respect  of  those 
whose  society  he  thus  declines,  and  will  lose  no  friends  worth 
keeping. 

HABITS  OP  STUDY. 

You  will  find,  if  you  do  not  already  realize  the  fact,  that,  with  rare 
exceptions,  the  road  to  success  in  our  profession  is  through  hard 
work.  An  eminent  English  lawyer  said:  "If  one  would  be  a  good 
lawyer,  he  must  live  like  a  hermit  and  work  like  a  horse;"  and  there 
is  truth  in  the  saying.  But  this  is  not  an  evil,  but  rather  a  good. 
"Honest  work,  well  done,"  is  a  source  not  only  of  profit  and 
growth,  but  of  genuine  pleasure  and  happiness.  No  young  man, 
just  commencing  practice,  can  expect  to  have  his  whole  time  occu- 
pied with  business,  and  it  is  of  vast  importance  that  he  at  once  adopt 
systematic  habits  of  study  and  work,  and  thus  prepare  himself  for 
business  when  it  does  come.  To  this  end  he  should,  at  any  cost, 
devote  much  time  to  a  careful  study  of  the  principles  of  his  pro- 
fession. Few  things  are  more  fatal  to  the  prospects  of  a  young 
lawyer  than  the  habit  of  idling  away  his  time  in  his  office  while 
waiting  for  business,  or  the  desertion  of  his  office  in  search  of 
pleasure  or  good  companionship.  Unless  when  business  calls  else- 
where, be  at  your  office  at  all  proper  hours,  and  always  at  work. 

I  do  not  think  that  the  best  mode  of  professional  study,  by  a 
practical  lawyer,  is  that  of  reading  text  books  in  course.  A  better 
mode  is  to  examine  special  topics  and  questions,  and  study  them 
thoroughly.  Let  some  one  question  be  examined  until  you  know 


MO  MODERN  JURY  TRIALS. 

t'lat  von  have  completely  mastered  it,  that  you  comprehend  the 
principle  that  underlies  it,  and  if  there  be  a  conflict  of  authorities 
upon  the  subject,  until  you  know  the  origin  of  that  conflict,  and  the 
several  theories  upon  which  it  is  based.  It  is  of  the  utmost  import- 
ance that  you  get  clear,  certain  and  fixed  opinions  upon  the  topics 
that  you  thus  examine.  Every  effort  at  forming  such  an  opinion 
is  an  element  of  intellectual  growth,  and  the  consciousness  of  hav- 
ing arrived  at  a  correct  conclusion  gives  a  needed  self-confidence, 
while  such  a  definite  opinion  is  an  ever-ready  weapon  in  your  pro- 
fessional armory. 

I  would  also  advise  you  to  master  some  particular  branch  of 
the  law  thoroughly.  It  is  impossible  for  any  one  man  to  be  a  com- 
plete master  of  the  whole  law.  The  study  of  a  lifetime  would  not 
enable  him  to  accomplish  this.  One  may  have  a  general  knowledge 
of  the  principles  of  the  law  in  its  different  departments,  and  he 
may  prepare  upon  any  given  case,  in  any  one  of  these  departments; 
but  there  is  no  lawyer,  however  learned,  that  will  not  frankly  admit 
that  there  are  men  equally  thorough  in  all  branches  of  practice. 


THB   TBIAJ,   ITSELF. 

The  first  step  in  the  actual  trial  of  a  case,  after  the  empaneling 
of  the  jury,  is  the  opening  of  the  cause  to  the  court  and  jury.  This 
is  a  matter,  the  importance  of  which  is  very  greatly  overlooked. 
It  should  not  be  an  argument,  but  it  should  be,  in  all  important 
cases,  a  statement  of  the  facts  and  points  of  law  upon  which  you 
rely  in  the  case.  It  should  be  simple,  clear,  yet  full;  candid,  yet 
strong.  Very  few  persons,  whose  attention  has  not  been  called  to 
the  matter,  comprehend  the  force  that  there  is  in  a  clear,  succinct, 
orderly  narrative  of  facts.  There  is  a  logical  power  about  such  a 
narrative  that  exceeds  often  the  mere  force  of  ingenious  reasoning. 
It  is  the  natural  logic  of  the  facts.  And  you  will  do  well  to  culti- 
vate with  care  this  power  of  clear,  simple,  forcible  narrative. 

The  next  step  in  order  is  the  examination  of  witnesses.  And 
this  affords  a  very  ample  field  for  the  exhibition  of  the  tact,  skill, 
shrewdness  and  legal  ability  of  counsel — a  field  quite  too  little  cul- 
tivated. Neither  books  nor  general  rules  can  aid  very  much  in 
making  a  good  examining  counsel  It  requires  good  sense,  good 
temper,  an  intimate  knowledge  of  human  nature,  quick  discern- 
ment, wise  discrimination,  a  familiarity  with  the  rules  of  evidence, 
and  very  thorough  knowledge  of  the  case  under  consideration. 

One  can  hardly  adopt  any  general  rule  as  to  the  manner  of 
examining  witnesses,  arising  from  the  different  character  of  wit- 


LAW  OFFICE,  STUDY  AND  TRIAL.  241 

nesses.  Some  witnesses  communicate  readily  and  clearly  what 
they  know.  From  some  you  can  hardly  draw  a  fact,  except  by  a 
process  akin  to  torture.  Some  are  garrulous  to  excess,  others  are 
taciturn  in  the  extreme.  The  one,  in  answering  your  questions, 
will  volunteer  much  that  is  entirely  irrelevant,  or  what  is  worse, 
quite  injurious,  while  the  other  will  hardly  answer  at  all.  Some 
are  sensitive,  bashful,  shamefaced;  others  bold  to  insolence.  Some 
are  positive 

"  Without  the  means  of  knowing  right  from  wrong, 

.  They're  always  decisive,  clear  and  strong." 

Some  are  so  fearful  of  being  wrong,  that  they  are  never  right, 
and  so  qualify  the  truth  that  it  loses  all  its  power.  In  dealing  with 
this  variety  of  character,  counsel  must  be  cool,  wary,  judicious, 
adapting  his  manner  to  the  necessities  of  his  position.  Above  all 
things,  let  counsel  avoid  the  manner  of  examination  entitled  brow- 
beating. There  are  instances  where  counsel  are  fully  justified  in 
examining  a  witness  with  great  sharpness  and  severity,  but  those 
cases  are  exceptional  and  very  rare.  As  a  rule,  counsel  who  are 
courteous  and  bland  in  their  manner  of  examination,  who  are  gen- 
tlemen themselves  and  treat  witnesses  as  gentlemen,  are  far  more 
successful  than  those  who  are  wanting  in  these  qualities. 

Let  me  specially  impress  upon  you  the  importance  of  knowing 
where  to  stop,  and  of  leaving  off  when  you  get  done.  Ask  no 
questions  without  an  object.  One  of  the  most  common  errors  com- 
mitted is  in  the  extended,  pointless  cross-examination  of  witnesses. 
The  right  of  a  cross-examination  is  of  inestimable  importance,  and 
in  certain  cases  the  exercise  of  this  power  requires  the  best  skill  of 
the  ablest  lawyers.  But  cross-examination,  as  often  conducted,  not 
only  does  not  aid  the  cross-examiner,  but  injures  his  cause* 
strengthens  the  testimony  of  the  witness,  and  wearies  and  annoys 
the  court  and  the  jury.  If  the  witness  is  honest,  cross-examination 
usually  refreshes  his  mind,  strengthens  his  recollection,  and  makes 
him  more  positive  in  his  statement  of  facts  than  he  was  in  his 
examination  in  chief.  And  if  dishonest,  and  skillful,  unless  you 
hold  the  threads  of  detection  in  your  own  hand,  cross-examination 
is  dangerous. 

In  the  practical  suggestions  that  I  have  made,  I  have  drawn 
freely  from  the  fruits  of  a  personal  experience  of  more  than  a 
quarter  of  a  century  of  not  unsuccessful  practice  in  the  profession 
in  which  you  are  engaged,  or  to  which  you  aspire.  That  profes- 
sion I  studied  in  the  midst  of  many  discouragements,  arising  from 
deficiencies  in  early  culture,  from  poverty  and  painful  embarrass- 
ment. Its  practice  I  commenced  in  the  midst  of  entire  strangers, 


242  MODERN  JURY  TRIALS. 

without  a  library  or  means  of  support,  and  without  any  one  to  lend 
me  a  helping  hand.  A  retrospect  of  my  own  life  enables  me,  with- 
out the  aid  of  "  mystical  lore,"  to  foresee  the  future  of  many  a 
member  of  this  class;  and  as  I  cast  that  horoscope,  I  see  no  flowery 
paths  of  ease  gleaming  through  the  vista  of  coming  years.  The 
honors  of  the  profession  are  neither  easily  won,  nor  lightly  worn. 
Earnest  struggle,  and  noble  endeavor  can  alone  enable  one  to  sur- 
mount the  "  hills  o'er  hills,  and  alps  o'er  alps,"  that  rise  in  the  path- 
way of  professional  life.  But  this  struggle  and  this  endeavor 
brings  its  own  reward  in  the  conscious  increase  of  power,  and  the 
fuller  development  of  the  faculties  with  which  God  has  endowed 
us. 

Prof.  WALKEB,  for  many  years  law  lecturer,  and  eminent  as  an  advocate 
in  the  prime  of  accurate  practice,  is  safe  authority  on  these  subjects.  Other 
reliable  counsel  have  approved  the  Twenty-one  Rules,"  and  kindred  topics 
treated  in  this  department. 


MAY  STEPHENS  INSURANCE  CASE. 

Tried  at  Detroit,  March,  1875. 

May  Stephens  lived  in  Ypsilanti,  and  was  insured  in  five  com- 
panies, aggregating  $20,000.  The  Michigan  Mutual  Life,  of 
Detroit,  contested  their  $5,000  policy  on  the  ground  of  fraud. 
Deceased  had  only  paid  twenty-four  dollars  in  all,  was  poor,  and 
gave  her  notes  for  premiums. 

She  was  drowned  in  a  cistern,  leaving  two  small  children — ages 
under  fourteen.  A  guardian  was  appointed,  and  suit  brought  in 
the  Superior  Court  of  Detroit,  which  was  crowded  full  as  the  trial 
came  on.  Judge  Longyear  left  the  United  States  Court  to  listen, 
and  was  invited  to  sit  with  Judge  Cochrane  of  the  Superior  Court. 
The  bar  crowded  in  en  masse,  and  witnesses  and  spectators  packed 
the  court  room  for  many  days. 

The  eloquence  of  Mr.  Lothrop,  the  caustic  logic  of  Mr.  Maynard 
and  the  keen,  incisive  points  of  Mr.  Pond  were  never  used  with  bet- 
ter force.  Every  one  was  at  his  best  from  beginning  to  end  of  the 
trial.  But  the  climax  came  with  the  closing  address  of  Mr. 
Anthony  McReynolds,  of  Ann  Arbor,  then  fully  seventy  years  of 
age,  a  large,  tall  man,  of  the  old  school  of  lawyers,  n  >t  often  heard 


MAY  STEPHENS  INSURANCE  CASE.  243 

in  court  rooms  of  late.  A  peculiar  Scotch  accent,  a  rugged,  west- 
ern style  of  speech,  but  extremely  convincing  and,  at  the  close, 
wonderfully  pathetic  and  eloquent. 

The  theory  of  the  defense  was  (1),  that  Mrs.  Stephens  insured 
heavily,  intending  to  commit  suicide;  (2)  that  she  was  too  poor  to 
pay  the  premiums,  and  must  have  known  it;  (3)  she  had  secret 
diseases;  (4)  the  company  was  so  honorable,  it  would  never  refuse 
to  settle  an  honest  claim  without  litigation.  Each  theory  was  ably 
elaborated.  But  the  purpose  of  this  report  is  to  give  the  quaint 
and  peculiar  eloquence  of  Mr.  McReynolds  and  the  effect  of  homely, 
rugged  words  on  modern  juries.  He  said: 

"You  would  think  that  Mr.  Lothrop's  honorable* directors  would 
rather  give  the  amount  of  the  plaintiff's  policy  than  suffer  the  dis- 
grace of  resisting  a  claim  !  As  citizens  we  concede  them  all  thia 
high  and  exalted  position,  far  above  and  beyond  all  cavil  and  quib- 
bling over  honest  debts? 

"  But  my  brother  forgets  those  great  words,  standing  out  in  his- 
tory ever  since  the  days  of  England's  brilliant  jurist,  Lord  Coke: 
'  Corporations  have  no  souls  ;  no  eyes  to  look  on  justice  /  no  ears  to 
hear  the  voice  of  witnesses  ;  no  hearts  to  feel  for  suffering  human- 
ity /'  An  honest  citizen  may  be  a  director  in  a  bad  corporation, 
where  the  majority  rules,  and  he  loses  his  identity  and  becomes  a 
soulless  citizen.  He  has  the  double  character — one  a  man,  a  tender, 
loving  man,  and  one  a  hard-hearted  corporator.  Let  me  explain: 
In  my  native  land  (most  of  you  know  where  that  is,  gentlemen), 
one  may  be  a  duke  and  a  bishop  at  the  same  time.  It  happened  a 
friend  was  both,  and  a  man  that  would  make  the  earth  tremble 
with  his  dreadful  oaths.  He  was  a  notorious  gambler,  attended 
fights  and  horse  races,  got  drunk,  and  did  all  that  such  men  often 
do,  but  quite  likely  to  disgrace  his  church.  A  brother  took  him  to 
do  about  it.  But  the  bishop  replied,  'You  don't  understand  this 
thing;  you  know  I  am  duke  of  the  realm  and  bishop  of  the  church. 
Well,  when  I  swear  I  swear  as  a  duke,  and  when  I  go  to  fights  I 
go  as  a  duke,  when  I  gamble  I  gamble  as  a  duke,  certainly  not  as  a 
bishop  !  When  I  pray  I  pray  as  a  bishop.'  '  But,  pardon  me,' 
said  his  good  brother,  '  if  I  illustrate  how  in  the  great  day  of  judg- 
ment, when  the  devil  shall  come  to  claim  his  own  (the  duke  in  all 
his  deviltry! ),  then,  pray  tell,  what  in  the  devil  will  become  of  the 
bishop?'  and  the  duke  subsided.  When  the  devil  shall  come  for 
these  soulless  corporations  and  their  honorable  officers,  where  in  the 
devil  will  be  the  good  citizens? 

"  But  she  was  poor  !     How  could  that  work  a  fraud  on  the  com- 


244  MODERN  JURY  TRIALS. 

pany  ?  The  policy  had  its  own  conditions,  was  its  own  receipt — was 
made  at  the  urgent  request  of  an  anxious  agent.  On  failure  to  meet 
the  premium,  she  was  deprived  of  its  benefits.  Talk  about  honest 
citizens  paying  honest  debts  !  Talk  about  fraud  committed'on  this 
poor,  afflicted  company,  with  its  force  of  shrewd,  sharp  men;  talk 
about  the  imposition  of  a  loathsome  disease !  Why,  gentlemen, 
what  are  the  records  on  that  fact?  Strange  her  nearest  neighbors 
never  knew  it.  Strange  the  doctors  never  knew  it.  Here  is  their 
story  in  this  application:  Sound,  healthy,  five  feet  six,  robust, 
skin  clear,  pulse  72,  waist  36,  no  insanity,  palpitation,  erect,  sound 
in  every  limb.  Yet  rotten  with  disease,  they  say  ! 

"  Oh,  what  a  monstrous  absurdity  !  Experts  chosen  for  learning, 
skill  and  experience,  baffled  by  a  poor,  weak  widow,  who  is  seek- 
ing to  impose  upon  the  world  by  a  fraud.  She  had  a  little  money. 
She  was  coaxed  to  invest  it  for  her  child — her  bright-eyed  boy,  for 
her  little  girl,  fast  budding  into  womanhood.  She  did.  She  went 
too  far.  She  was  over-persuaded.  These  men,  pleading  in  her 
ear,  telling  the  stories  of  profits,  singing  their  siren  songs,  that, 
like  the  mermaids  in  the  legends  of  old,  which  lured  the  returning 
seamen  from  their  well-filled  boats  to  tie  up  the  ships  and  follow 
the  sweet  songs  until  far  away  from  home,  in  the  mountains  and 
forests,  they  were  lost,  to  die  alone  in  hunger  and  delirium.  It  is 
said  that  ever  afterwards  travelers  took  warning,  as  they  passed, 
and  put  wax  in  their  ears  to  shut  out  the  music  of  the  allurers  as 
they  passed.  This  may  be  a  lesson  in  our  day,  for  only  wax  could 
shut  out  the  pleading  appeals  to  join  this  coaxing  company.  *  *  * 
Oh,  what  a  picture  is  here  to  behold!  Two  little  orphans  battling 
with  a  giant  corporation!  A  money  power,  backed  by  the  bond- 
holders and  directors.  How  it  rouses  our  impulses  to  witness  the 
contest ! 

"  That  mother,  the  object  of  this  bereavement,  is  gone.  Her  lips 
are  dumb;  her  voice  his  hushed — low  in  the  silent  grave.  No  whis- 
per can  come  back  to  say:  'I  slipped.  I  fell.  I  was  misguided. 
I  did  all;  I  risked  all  for  you  !  for  you,  my  children,  my  own  ! 
For  you,  my  little  ones.' 

"  She  has  gone.  She  has  whispered  the  last  good  night  and  gone  I 
The  secrets  of  her  death  are  locked  up  till  the  judgment  day. 
There  they  are  sacred;  there  they  will  remain  secure. 

******** 

"Oh  !  I  can  see  her  now;  it  is  early  twilight,  it  is  winter,  the 
snow  is  falling  fast  and  slippery;  whitening  the  little  plank  walk 
to  the  cistern.  She  has  company,  she  hurries  down  the  walk, 
catching  up  a  pail,  leaving  the  hook  hanging  over  the  curbing, 


"MAY  STEPHENS  INSURANCE  CASE.  245 

bending  low  she  slips,  falls,  the  water  covers  over  her,  no  one 
hears,  she  is  drowned  !  It  is  an  accident;  and  I  almost  hear  her 
say,  as  she  looks  down  to  you,  to  this  upright  judge,  this  honest 
jury:  'Gentlemen,  you  may  cheat  my  children,  if  you  will,  but 
spare  them  the  burden  of  dishonor;  the  money  will  be  a  poor  pit- 
tance at  the  most  to  that  priceless  character  that  my  innocent  chil- 
dren should  inherit.'  We  plead  for  the  money  that  they  deserve, 
we  plead  for  the  character  that  they  own,  we  plead  for  the  justice 
that  their  evidence  demands;  make  their  lives  happy  and  their 
mother's  memory  sweet — sweet  as  the  day  she  bade  them  good- 
night, the  night  before  the  night  of  death,  little  dreaming  of  the 
sudden  end,  little  dreaming  of  the  scandal  they  should  me^t,  little 
dreaming  she  should  be  held  up  in  horror  to  frighten  a  joj'y  from 
duty;  held  up  in  shame  and  diseased  to  blot  out  the  fair  i  ame  she 
had  earned  for  her  children  !  You  will  not  stain  these  li  .tie  ones, 
gentlemen;  you  will  not  pay  a  claim  that  way;  you  will  not,  cancel  a 
just  debt  by  a  mean  insinuation  of  wrong.  Why,  gentlemen,  they 
would  have  you  think  that  this  woman  loved  her  little  ones  so 
much  that  she  dared  the  pains  of  hell,  and  drowned  herself,  th#t 
they  might  be  made  rich,  though  orphaned  !  No  crown  of  glory 
she  held  in  prospect;  no  garland  of  the  blessed  to  be  wreathed 
upon  her  brow  !  only  a  sordid  fraud,  a  leap  in  the  dark  oblivion  of 
the  great  hereafter,  to  get  gain  !  *  *  * 

"  Gentlemen,  my  work  is  almost  done;  poorly  as  it  is,  I  must 
trust  to  you  to  do  a  better  work.  And  my  little  clients  (here  the 
speaker  laid  one  hand  on  each  of  the  client's  shoulders  and  amid 
the  hushed  silence  of  rapt  attention,  said),  my  little  clients,  may 
God  bless  you  !  I  have  done  my  best  to  make  your  names  an  honor 
to  our  state.  But,  O!  how  poor  and  weak  my  words  have  been. 
And  you,  gentlemen,  even  now,  by  your  silence  and  your  interest 
in  this  case;  methinks  I  hear  you  say,  stop  !  delay  not  longer !  let 
us  begin  this  work  of  justice;  stop  !  that  we  may  rebuke  this  cruel 
company;  stop  !  that  we  may  restore  these  orphans  to  their  own; 
to  that  pure  character  that  they  will  love  to  honor,  a  character  as 
pure  as  they  knew  her  on  that  last  and  long  good-night;  stop  !  that 
you  may  wipe  away  all  tears  from  these  orphaned  eyes,  and  plant 
the  sweet  rose  of  a  mother's  love  in  their  bright  young  lives  to 
grow,  bloom  and  bless  the  world  for  their  living  in  it;  stop  !  that 
we  may  right  this  wrong  at  once.  O  God  !  put  it  into  the  hearts 
of  this  jury  to  see  the  truth;  to  vindicate  a  mother's  name  and  a 
mother's  love  to  her  helpless  children. 

"  O  God  !  remove  the  mist  from  this  case,  reveal  the  truth  to 
these  jurors,  let  them  see  their  duty  and  give  them  strength  to  do 


246  MODERN  JURY  TRIALS. 

right,  and  do  it  remembering  that  some  day — yes,  an  early  day  to 
most  of  them,  when  they  shall  be  called  home,  to  leave,  it  may  be,, 
dependent  children  and  a  sacred  memory  of  a  good  name — that  of 
future  juries  theirs  may  expect  the  same  just  finding  that  they  have 
found  for  us — a  verdict  and  a  vindication  ! 

Jury  found  for  $5,300,  and  the  other  three  cases  were  duly  paid.  The  case 
was  an  ideal  jury  trial.  I  have  reported  last  part  from  memory.  I  have  never 
witnessed  more  effective  eloquence.  J.  W.  D. 


FOSTEK-HATFIELD  TRIAL. 

Held  at  Indianapolis,  January,  187S, 

The  convenient  plea  of  insanity  that  cleared  so  many  celebrated 
criminals  failed  to  acquit  in  Foster-Hatfield  case.  The  defense  was 
unusually  able  and  eloquent.  The  jury  were  deeply  moved.  The 
dramatic  surroundings  were  not  wanting;  but  wife  and  children, 
tears  and  appeals,  were  in  vain.  Attention  is  called  to  the  skillful 
reply  of  Gen.  Brown  to  the  final  appeal  for  sympathy — one  of  the 
best  replies  ever  uttered: 

"  Take  this  widow  and  these  orphaned  children,  and  standing  by 
the  grave  of  Calvin  Hatfield,  unmarked  by  stone  or  monument, 
and  in  view  of  the  great  sorrow  that  this  defendant  has  brought 
into  the  world,  there  write  your  verdict  !"  The  speech  is  so  brief 
that  it  is  given  in  full,  hoping  it  will  repay  a  careful  reading. 

HON.  THOMAS   M.  BROWNJ8   ADDRESS. 

Gentlemen  of  the  Jury  :  After  the  able,  eloquent  and  convinc- 
ing argument  of  my  colleague,  Mr.  Guffin,  I  feel  that  there  is  but 
little  left  to  say  in  presenting  the  case  on  the  part  of  the  Common- 
wealth. He  has  presented  it  so  fully,  so  ably,  that  I  feel  embar- 
rassed in  reviewing  the  ground  of  discussion.  He  has  invited  your 
attention  to  every  material  point  in  this  important  and  solemn  con- 
troversy, and  has  completely  exhausted  every  topic  within  the 
orbit  of  this  discussion,  and  has  left  nothing  to  me  but  to  repeat 
what  he  has  already  said  so  well.  I  have  no  hope  that  I  shall  be 
able  to  acquit  myself  as  creditably  as  he  has  done,  but  with  your 


FOSTER-HATFIELD  TRIAL.  247 

indulgence  I  will  discharge  this  unpleasant  but  responsible  duty  as 
best  I  can. 

To  this  indictment,  charging  the  defendant  with  the  willful  and 
deliberate  murder  of  Calvin  Hatfield,  his  counsel  set  up  a  two-fold 
defense,  and  these  defenses  are  inconsistent  and  antagonistic.  It 
is  said,  first,  that  when  this  life  was  taken — that  when  the  accused, 
on  the  twenty-seventh  of  November,  shot  Calvin  Hatfield  to  death 
— he  was  insane;  that  the  act  was  the  result  of  an  insane  impulse; 
that  it  was  the  act  of  an  irresponsible  and  irrational  being.  Again 
it  is  assumed  that  the  act  was  one  of  self-defense;  that  it  was  done 
under  the  well-founded  apprehension  that  it  was  necessary  to  the 
preservation  of  the  defendant's  life,  or  to  save  him  from  serious 
bodily  harm. 

These  defenses  do  not  stand  well  together.  The  presence  of  the 
one  excludes  the  other.  Either  of  them,  if  supported  by  the  evi- 
dence, is  complete  in  itself,  and  there  can  be  no  conviction  if  either 
be  true.  But  there  is  no  legal  chemistry  by  which  you  can  mix  half 
insanity  and  half  self-defense  together  and  thus  compound  a  com- 
plete answer  to  this  charge. 

If  the  defendant,  at  the  time  of  this  most  horrible  tragedy,  was 
in  fact  of  unsound  mind,  or  if  it  became  necessary  for  him  to  take 
the  life  of  the  deceased  to  save  his  own,  or  to  protect  his  person 
from  serious  or  grievous  harm,  then  he  is  not  guilty  of  the  crime 
returned  against  him  in  the  indictment.  But  if  the  act  was  one  of 
self-defense — if  it  was  the  act  of  one  who  had  reason  to  apprehend 
that  his  own  life  was  in  peril,  and  that  it  was  necessary  to  slay  his 
adversary  to  insure  his  own  safety,  then  the  transaction  was  a 
rational  one,  and  the  actor  must  have  been  sane.  The  act  of  self- 
defense  is  the  result  of  correct  thought.  The  defendant,  it  is  said 
by  this  defense,  saw  the  danger;  realized  that  it  was  imminent; 
that  unless  he  acted,  and  acted  promptly,  serious  consequences 
would  ensue.  It  is  said  that  the  means  employed  to  save  himself 
were  suited  to  the  great  emergency.  If  these  things  be  true,  they 
are  wholly  and  utterly  repugnant  to  the  defense  of  insanity.  The 
act  of  self-defense  supposes  the  presence  of  the  reasoning  powers 
and  of  their  employment. 

The  defendant's  counsel  in  one  sentence  pronounce  him  a  maniac, 
and  in  the  next  they  insist  that  in  this  work  of  death  he  acted  tht? 
part  of  a  reasoning  and  rational  man;  that  he  saw  the  emergency, 
knew  its  extent,  and  adopted  the  proper  measures  to  avert  the  im- 
pending danger.  I  repeat,  gentlemen,  that  these  defenses  are 
inconsistent  and  antagonistic. 

First,  then,  to  this  defense  of  insanity.     Upon  this  subject  I  shall 


248  MODERN  JURY  TRIALS. 

probably  have  much  to  say,  not  that  it  is  particularly  involved  in 
this  cause,  not  that  there  is  any  evidence  supporting  this  theory  of 
the  defense  that  deserves  serious  consideration  or  protracted  dis- 
cussion, but  for  the  graver  reason  that  we  have  arrived  at  a  time 
in  the  administration  of  justice,  in  the  enforcement  of  the  statutes 
against  crime  in  this  country,  when  it  is  the  duty  of  every  citizen 
who  respects  justice,  has  a  regard  for  the  safety  of  society  and 
desires  to  see  the  law  enforced,  to  carefully  consider  this  oft-abused 
defense,  this  common  highway  of  escape  for  the  most  vicious  and 
abandoned  criminals  in  the  land. 

If  a  crime  is  committed  that  shocks  and  startles  humanity— one 
at  the  mention  of  which  strong  and  brave  men  turn  pale;  one  so 
shocking,  so  atrocious  that  it  appears  the  work  of  a  monster  rather 
than  a  man;  when  the  law  has  been  outraged  and  set  at  defiance, 
and  when  public  peace  and  security  cry  aloud  for  an  example — it 
is  in  such  a  case — when  no  other  defense  can  be  devised — that 
insanity  is  made  available.  The  bolder  and  bloodier  the  murder 
the  better  and  the  more  easy  the  escape.  On  the  slightest  provo- 
cation and  most  flimsy  pretext,  a  throat  is  deliberately  cut  or  a 
head  blown  off,  and  the  assassin  is  suddenly  discovered  to  have 
acted  under  an  "insane  impulse"  that  overwhelmed  his  "will 
power,"  and  a  jury  of  intelligent  but  credulous  gentlemen  so  write 
it  in  the  verdict. 

A  quarrelsome,  worthless,  drunken  vagabond,  one  who  has  long 
been  a  terror  to  his  neighbors,  who  involves  himself  in  bar-room 
broils  and  street  fights,  fills  himself  with  whisky  to  fortify  his 
courage,  and  then  maliciously  kills  his  man.  No  defense  is  thought 
possible,  but  "  homicidal  mania,"  or  some  other  mental  infirmity, 
is  conjured  up;  a  jury  acquits,  and  public  justice  is  outraged. 

How  easy  it  is  to  raise  a  doubt  as  to  mental  condition.  Go  back 
along  the  pathway  of  the  man's  life,  show  his  every  eccentricity, 
every  foible,  every  impracticable  twist  in  his  conduct,  the  foolish 
things  he  has  done  when  sober,  the  ridiculous  things  when  drunk; 
give  the  number  of  convulsions  he  may  have  had  when  a  babe, 
depict  his  extravagant  expressions  when  in  the  delirium  of  a  fever, 
and  his  hallucinations  when  sobering  up  out  of  a  debauch — group  all 
these  together,  and  base  an  opinion  upon  them  solely,  the  proof 
appears  complete,  and  a  murderer  goes  acquit. 

Gentlemen,  I  am  true  to  the  history  of  the  times  when  I  say  that 
these  defenses  are  in  a  very  large  majority  of  instances  manufac- 
tured to  order — gotten  up  for  the  case — and  that  juries  have  made 
themselves  ridiculous  and  brought  the  administration  of  the  law 


POSTER-HATFIELD  TRIAL.  249 

into  contempt,  and  reproach  upon  our  tribunals  of  justice,  by  allow- 
ing the  bloodiest  and  guiltiest  in  the  land  to  escape  punishment. 

Look,  if  you  please,  to  the  many  extraordinary  cases  of  murder 
of  recent  date,  in  which  this  defense  has  been  made  available,  and 
can  you  name  a  single  person  in  whose  behalf  it  has  been  made, 
who  has  ever  been  confined  because  he  was  dangerous  to  society, 
or  even  put  under  treatment  for  the  disease  ?  No,  gentlemen,  these 
men,  with  crimson  hands,  walk  abroad  at  noon  day.  Shall  such 
things  be?  You  must  answer — courts  are  powerless  unless  juries 
do  their  duty. 

I  am  not  without  authority  for  these  statements.  This  outrage 
upon  the  civilization  of  the  age  is  not  only  the  topic  of  general  con- 
versation, but  it  has  been  mentioned  by  the  Supreme  Court  of  the 
State.  In  the  case  of  Bradley  v.  The  State,  Mr.  Justice  Ray  says: 

"We  are  well  aware  that  the  doctrine  of  insanity  has  been 
employed  by  counsel  to  cover  the  most  execrable  crimes;  that 
juries  have  disgraced  themselves  and  degraded  their  office  in  apply- 
ing it  to  the  sanest  of  criminals.  In  special  cases  they  will  not  dis- 
tinguish between  insanity  and  moral  depravity.  If  there  ever  were 
a  time  when  the  truth  might  be  withheld,  the  temptation  would  be 
strong  upon  us  now.  *  *  *  Indeed,  it  must  be  evident 
that  the  cases  where  the  shield  of  insanity  protects  the  guilty,  are 
those  where  the  circumstances  appeal  so  strongly  to  the  sympathy 
of  the  jury  that  they  would  probably  acquit  without  any  pretext; 
where  the  feelings  control  the  judgment  and  the  moral  obligation 
of  their  oath,  and  fit  the  triers,  if  not  the  tried,  for  an  inquest  of 
insanity." 

With  these  observations,  demanded  as  I  believe  by  the  exigen- 
cies of  the  times,  I  will  proceed  to  discuss  such  portions  of  the  evi- 
dence as  may  be  thought  to  bear  upon  this  branch  of  the  case.  Mr. 
Mattler  calls  your  attention  to  the  words  of  the  act  defining  the 
crime  of  murder  in  the  first  degree.  "  If  any  person  of  sound 
mind,"  says  the  law,  "shall  purposely  kill,  etc."  It  is  quite  true, 
there  can  be  no  guilt — no  accountability  in  the  absence  of  under- 
standing; and  there  can  be  no  punishment  unless  the  accused  was 
in  legal  contemplation,  of  sound  mind  when  the  act  was  commit- 
ted. But  you  must  bear  in  mind  that  the  law  presumes  sanity  and 
legal  accountability,  and  this  presumption  continues  until  it  is 
attacked  by  evidence  tending  to  show  a  contrary  condition.  The 
burden  of  this  proof  is  upon  the  defendant. 

Before  proceeding  further,  it  is  proper  to  dispose  of  one  branch 
of  the  defendant's  case,  and  I  shall  do  so  in  a  word.  Drunkenness 
is  not  insanity.  One  who  commits  a  crime  when  voluntarily  intox« 


250  MODERN  JURY  TRIALS. 

icated  is  not  excused,  but  held  to  the  fullest  measure  of  accounts- 
bility.  Such  is  and  always  has  been  the  law.  To  hold  otherwise, 
in  this  day  of  bar-rooms  and  saloons,  would  be  monstrous.  Drunk- 
enness in  no  sense  mitigates  crime  purposely  and  intentionally  com- 
mitted. The  learned  gentlemen  who  have  so  ably  conducted  thia 
defense  assume,  however,  that  drunkenness  is  only  voluntary,  in 
a  legal  sense,  when  the  person  gets  into  that  condition  for  the 
purpose  of  preparing  himself  for  the  commission  of  an  act.  This 
position  has  the  single  merit  of  novelty;  it  is  fortified  by  no  reason, 
and  supported  by  no  authority.  That  it  is  not  the  law,  I  am  certai^ 
and  I  will  not  insult  the  intelligence  of  the  court  by  giving  it  fur- 
ther attention.  Gentlemen,  the  court  will  doubtless  fully  instruct 
you  on  this  point. 

What  is  insanity  ?  What  kind  and  what  measure  of  mental  inca- 
pacity— unsoundness  of  mind — will  excuse  the  killing  of  a  human 
being?  The  state  is  content  with  the  law  as  stated  by  the  counsel 
for  the  defense.  I  will  read  the  rules  laid  down  in  the  authorities 
cited  by  the  gentlemen,  and  by  these  expositions  of  the  law  let  this 
case,  as  to  this  question,  be  determined.  All  the  Supreme  Court 
has  said  in  the  case  of  Stevens  v.  The  State  and  Bradley  v.  The 
State  may  be  summed  up  in  a  single  sentence:  "  Has  the  defendant 
in  a  criminal  case  the  power  to  distinguish  right  from  wrong  and 
the  mental  power  to  adhere  to  the  right  and  avoid  the  wrong  ?  " 

First,  insanity  may  be  said  to  directly  affect  the  reasoning  pow- 
ers of  the  mind,  and  secondly,  the  will  power.  If  one  knows  the 
difference  between  right  and  wrong;  if  he  is  conscious  that  the  act 
was  one  which  he  ought  not  to  have  done,  and  at  the  time  had  con- 
trol of  his  will  and  judgment,  then,  say  the  authorities  cited,  such 
a  one  will  be  accountable  for  the  act.  It  is  said  one  may  reason 
correctly,  and  yet  if  he  lacks  the  power  to  control  his  conduct  he  is 
of  unsound  mind.  This  is  indeed  a  most  liberal,  and  I  believe  a 
most  dangerous  rule.  But,  gentlemen,  I  am  willing  that  you  shall 
regard  this  as  the  law  applicable  to  this  case.  We  must  bear 
in  mind,  as  we  proceed  in  this  investigation,  that  insanity  and 
moral  depravity  are  not  the  same.  How  often  men  under  the 
influence  of  powerful  and  controlling  passion  commit  crimes  of 
violence.  It  might  be  said  in  such  case  that  there  was  a  "  want  of 
power  to  control  the  conduct,"  but  it  would  be  monstrous  to  hold 
one  excused  under  circumstances  like  these.  Passion,  however 
strong,  terrible  or  emotional,  is  not  insanity.  It  would  destroy 
government  almost  to  allow  anger  to  excuse  from  criminal  respon- 
sibility. Anger  has  more  frequently  dyed  its  hand  in  human 
gore  than  hatred  or  revenge.  It  has  nerved  the  arm  and  direo- 


FO8TER-HATFIELD  TRIAL.  251 

ted  the  blow  in  many  of  the  most  heartless  and  brutal  murders  that 
have  ever  disgraced  the  world. 

Again,  one  may  be  said  to  have  lost  his  "power  of  will"  when 
he  yields  to  temptation.  The  thief  who  takes  the  property  that 
does  not  belong  to  him  yields  to  his  baser  nature — his  depraved  and 
vicious  instincts  get  the  supremacy  of  his  moral  powers.  How 
many  have  struggled  long  and  gallantly,  until  the  great  tempta- 
tion that  lay  in  their  pathway  overpowered  them  and  they  fell,  and 
oh,  how  sadly.  Such  cases  may  excite  our  sympathy,  but  yet  there 
is  sin,  and  shame,  and  crime  in  the  fall. 

I  desire  to  be  distinctly  understood  that  when  I  speak  of  the 
want  or  the  absence  of  the  will  power  as  an  unsoundness  of  mind, 
I  refer  to  cases  where  this  faculty  of  the  human  intellect  is 
absent,  as  the  result  of  disease,  or  to  cases  where  it  never  had 
an  existence.  There  may  be  an  occasional  case  where  one  per- 
^ectly  sane  a  moment  before  and  in  a  moment  after  the  commission 
of  murder,  but  who  just  at  the  particular  instant,  by  an  uncontroll- 
able impulse,  lost  the  power  to  control  his  actions,  but  I  think  these 
cases  rare — so  rare  that  the  hanging  of  a  few  of  such  maniacs 
would  make  such  bloody  impulses  more  rare  in  the  future. 

Regarding  these  impulsive  cases  as  base  and  shameful  frauds,  I 
am  still  bound  to  admit  that  when  the  functions  of  the  mind  are  so 
impaired  that  the  power  to  control  the  act  is  wanting,  there  can  be 
no  crime.  The  defense  put  this  defendant  afloat  on  the  great  sea 
of  human  life  without  rudder  or  compass;  at  the  mercy  of  every 
wave;  blown  out  of  his  course  by  every  gale;  powerless  to  avoid 
the  breakers,  and  liable  at  any  moment  to  be  stranded  on  the 
rocks.  In  the  light  of  the  evidence,  I  protest  that  such  was  not 
the  case.  I  maintain  that  this  murder  was  deliberately  planned  and 
consummated.  It  was  cold-blooded  and  fiendish  it  is  true,  but  it 
was  the  act  of  a  man  incited  by  a  long-nurtured  and  malignant  pur- 
pose. I  believe  his  counsel  do  not  insist  that  this  deed  was  the 
result  of  a  mania — an  insane  delusion.  Such  cases  sometimes 
occur,  but  they  are  always  well  defined  and  easy  of  proof.  Take 
the  case  of  Hadfield,  which  Erskine,  by  his  eloquent  defense,  has 
made  immortal.  In  that  case  the  accused  was  a  loyal  subject  of 
the  king,  had  been  a  gallant  soldier  under  the  proud  flag  of  Tra- 
falgar, and  was  ever  ready  to  resent  the  slightest  insult  offered  to 
his  majesty.  In  all  respects  he  appeared  rational,  except  upon  a 
single  subject.  He  thought  himself  a  Messiah — that  he  had  a  great 
mission  to  perform  in  the  world;  that  to  complete  this  work  he 
must  die;  that  he  must  be  crucified.  He  sought  death  at  the  hands 
of  the  people  or  the  executioner.  Until  this  was  done  he  thought 


252  MODERN  JURY  TRIALS. 

his  divine  mission  not  performed.  Reasoning  accurately,  he  knew 
that  to  compass  the  death  of  the  king  was  treason;  that  the  punish- 
ment  for  treason  was  death.  To  bring  this  death  upon  himself  he 
shot  at  his  sovereign  in  a  public  theater.  This  act  was  plainly  and 
unmistakably  the  result  of  his  insane  hallucination.  He  had  no 
enmity  toward  the  king,  nor  did  he  desire  his  death.  Hadfield  was 
acquitted,  and  it  was  right;  the  intelligent  and  the  good  every- 
where approved  the  verdict.  This  is  not  such  a  case.  Here  there 
was  no  delusion.  The  deceased  did  not  kill  his  friend,  but  his 
enemy.  He  went  out  after  one  with  whom  he  had  quarreled, 
toward  whom  he  bore  malice,  and  having  found  him  he  killed 
him.  He  prepared  himself  for  the^bloody  work,  and  did  it  in  pur- 
suance of  a  long  entertained  and  deliberately  formed  purpose. 
Gentlemen,  these  are  the  actions  of  a  sane  man,  and  this  homicide 
is  a  crime,  and  that  crime  is  murder. 

If  this  defendant  was  subject  to  illusions  or  hallucinations — and 
I  deny  that  he  was — still  he  is  guilty  of  murder.  He  may  have 
been  possessed  of  any  number  of  delusions,  yet  if  the  killing  of  Hat- 
field  was  clearly  not  the  result  of  any  of  them,  it  was  murder,  will- 
ful, deliberate,  cold-blooded  murder.  This  was  no  bloody  mistake. 

I  will  now,  gentlemen,  proceed  to  the  discussion  of  the  facts  in 
evidence  upon  which  the  defendant  relies  to  establish  insanity. 
Perhaps  when  I  say  that  counsel  rely  upon  insanity  as  a  defense,  I 
state  their  theory  of  the  case  too  broadly;  they  only  hope  to  create 
a  reasonable  doubt  on  this  point,  and  thus  defeat  the  ends  of  public 
justice. 

Here  Gen.  Browne  took  each  of  the  circumstances  in  the  evi- 
dence, upon  which  the  defense  relied  to  establish  unsoundness  of 
mind.  His  discussion  of  this  part  of  the  case  was  elaborate  and 
exhaustive.  He  concluded  this  branch  of  the  discussion  by  the 
noon  adjournment. 

He  then  proceeded: 

Gentlemen,  the  next  question  in  this  case  is  that  of  self-defense. 
If  it  had  not  been  referred  to  by  my  brother  Mattler,  and  discussed 
by  him  with  a  seeming  seriousness,  I  would  not  have  regarded  it 
my  duty  to  call  your  attention  to  it  at  all.  This,  if  it  exists,  is  a 
real  and  manly  defense.  I  hope  the  time  may  never  come  when 
this  great  law  shall  be  impaired  or  blotted  out.  I  admit  the  law 
to  be  all  the  gentleman  claims  for  it  It  is  said  to  be  nature's 
great  first  law — that  it  is  felt  in  the  first  throb  of  the  human  heart; 
that  it  is  ingrained  into  our  very  being;  that  it  is  a  part  of  the 
"woof  and  web"  of  our  lives.  I  admit  it  all.  The  impress  of 


POSTER-HATFIELD  TRIAL.  253 

divinity  is  on  this  law  and  it  rises  higher,  infinitely  higher,  than 
human  statutes.  If  this  is  a  case  of  self-defense  on  the  part  of  the 
accused,  let  him  go  acquit.  I  admonish  you  that  it  is  your  duty  to 
acquit  him,  if  in  killing  Calvin  Hatlield  he  did  no  more  than  defend 
his  own  person.  "Without  troubling  you  with  authorities,  I  say  to 
you  if  the  accused  slew  Hatfield  under  a  reasonable  apprehension 
that  his  own  life  was  in  danger,  or  that  he  was  in  peril  and  likely 
to  suffer  grave  or  serious  bodily  injury,  he  had  the  right  to  do  so, 
and  he  is  guilty  of  no  crime.  Bloody  and  terrible  as  it  has  been 
to  poor  Hatfield,  his  widowed  wife  and  helpless  children,  the  act  is 
excusable,  and  no  law  has  been  violated.  I  have,  however,  failed 
to  discover  any  such  defense  in  the  evidence.  There  is  no  place 
for  it  in  this  case.  It  is  a  flimsy,  shadowless  pretense,  scarcely 
worthy  serious  consideration.  Strike  from  the  record  all  of  this 
case  except  what  occurred  at  the  house  at  the  time  of  the  murder, 
and  there  is  nothing  upon  which  to  hang  a  doubt.  The  only 
tangible  fact  to  which  the  gentlemen  refer  in  support  of  this 
hypothesis  is  that  immediately  after  Hatfield  was  killed  a  knife  was 
found  on  the  floor  near  his  person.  It  was  unopened.  How  it 
came  there  is  not  entirely  clear,  but  that  it  was  in  the  hands  of  the 
deceased  I  challenge  the  defense  to  show  by  the  proofs.  It  had 
not  been  used  and  was  not  prepared  for  use,  for  it  was  unopened. 
How  it  came  there  I  believe  to  be  explained  by  the  fact  that  it  was 
in  his  side  coat  pocket,  and  that  it  dropped  out  as  he  fell,  after 
being  shot,  to  the  floor.  Mrs.  Hatfield  swears  that  she  saw  it  in 
his  pocket  after  he  came  into  the  house,  and  I  fully  confide  in  her 
truthfulness.  The  only  witnesses  who  speak  of  having  seen  the 
knife  are  Mrs.  Owens  and  the  defendant's  sister  Emma,  and  neither 
of  them  pretend  that  it  was  open.  Emma  saw  it  near  his  feet — 
and  unquestionably  where  it  fell — while  Mrs.  Owens  first  discov- 
ered it  some  five  or  six  feet  from  the  body.  How  come  it  to  be 
removed  ?  I  can't  answer  the  question.  I  only  know  that  the 
knife  was  there,  unopened  and  unused.  In  addition  to  this,  the 
wife  and  mother-in-law — the  only  persons  who  witnessed  the  trag- 
edy— both  swear  that  the  deceased  at  no  time  had  this  knife  in  his 
hands.  About  this  there  can  be  no  question.  How  will  this  evi- 
dence be  met  ?  The  counsel  will  ask  you  to  imagine  that  the  knife 
was  there  for  use.  But,  gentlemen,  let  me  admonish  you  that  you 
are  trying  this  case  by  the  evidence.  By  the  light  of  the  evidence 
you  must  say  whether  or  not  this  knife  was  in  the  hands  of  the 
deceased. 

Mr.  HAXNA  (interrupting) — I  ask  you,  General,  to  state  how  this 


254  MODERN  JURY  TRIALS. 

knife  fell  out  of  his  pocket,  when  it  was  found  in  the  middle  room? 
I  ask  you  to  state  this  as  a  matter  of  fairness,  as  I  shall  probably 
allude  to  this  circumstance. 

Gen.  BEOWXB — It  Js  impossible  for  every  feature  in  a  trans- 
action like  this  to  be  fully  explained.  This  occurrence  produced 
extraordinary  excitement  and  tumult.  A  multitude  of  persons 
were  soon  attracted  to  the  scene  of  this  crime.  There  was  hurry- 
ing to  and  fro,  and  that  this  knife  should  have  changed  positions 
within  an  hour  is  not  strange.  But  how  came  it  in  the  middle 
room  ?  The  deceased  stood  in  the  middle  room  when  he  was  shot; 
and  when  he  lay  there  dead  his  feet  were  still  in  the  door-way  of 
the  middle  room,  and  the  knife  was  first  seen  near  his  feet.  This 
explains  the  matter,  if  it  needs  explanation. 

But,  gentlemen,  it  is  insisted  that  Mrs.  Hatfield  was  not  present 
when  this  murder  was  committed.  Why  not  present  ?  Because 
Mrs.  Owens  admitted  to  Foster  that  she  did  not  notice  her  pres- 
ence at  the  time  the  shot  was  fired.  Mrs.  Hatfield  swears  she  was 
there.  That  Mrs.  Owens  did  not  see  her  is  explained  by  the  fact 
that  she  stood  to  the  rear  and  right  of  that  old  lady.  Under  the 
circumstances  you  are  not  astonished  that  she  was  not  observed 
by  this  brave  old  'ady,  when,  with  an  infant  on  one  arm,  she  was 
with  the  other  defending,  with  all  the  vigor  of  her  old  life,  her  son- 
in-law  from  the  fiendish  attack  of  his  murderer.  After  the  gun  had 
been  snatched  from  her  hands,  and  she  dragged  to  the  floor  by  the 
defendant,  she  still  watches  intently  the  result.  In  an  instant 
afterward  the  deed  is  done,  and  Hatfield,  with  his  head  blown  lit- 
erally from  his  shoulders,  falls  lifeless  at  her  feet.  Are  you  to  dis- 
credit the  evidence  of  Mrs.  Hatfield,  simply  because  under  these 
most  trying  and  exciting  circumstances  Mrs.  O  \vens  failed  to 
observe  her  ?  But  Mrs.  Owens  does  place  Mrs.  Hatfield  there.  On 
the  instant  the  gun  was  fired  his  heart-broken  wife  cried  out  in  her 
frenzy:  "  Has  he  killed  him ?"  "Yes,"  was  the  terrible  response, 
"  he  has  shot  the  whole  top  of  his  head  off."  She  was  there  then — 
at  the  very  instant  of  the  murder. 

But  it  is  clear  that  she  was  present  from  the  other  facts  in  the 
case.  That  she  was  there  when  the  defendant  and  deceased  came 
to  the  house  is  abundantly  established.  When  did  she  leave? 
How  did  she  return  ?  Yes,  gentlemen,  she  was  there.  Although 
her  mother  and  herself  were  examined  separately — thoroughly, 
exhaustively,  their  evidence  is  in  accord  to  the  minutest  particular. 
Mrs.  Hatfield  and  Mrs.  Owens  were  both  present,  and  both  swear 


FOSTER-HATFIELD  TRIAL.  255 

clearly  and  positively  that  the  deceased  neither  used  or  sought  to 
use  a  knife  on  this  occasion. 

But,  gentlemen,  I  say  to  you,  in  the  presence  of,  and  subject  to 
the  censure  of  this  learned  court,  in  the  presence  of  these  learned 
gentlemen  of  the  profession,  and  in  the  presence  of  the  able  coun- 
sel who  so  zealously  conduct  this  defense,  Calvin  Hatfield  had  the 
right  to  have  his  knife  there;  to  have  it  open,  to  have  it  in  his 
hand,  and  with  it  to  have  taken  the  life  of  James  Foster.  And  had 
he  done  this,  he  would  have  stood  in  the  presence  of  this  court,  and 
in  the  presence  of  the  civilized  world  guiltless  of  any  crime.  It  is 
true  the  law  has  a  tender  regard  for  human  life — it  is  sacred  in  the 
eye  of  the  law,  and  it  is  your  duty  as  peaceable  and  law-abiding 
men,  and  it  is  my  duty  to  retreat — if  you  or  I  can  do  so  in  safety — 
rather  than  take  upon  our  hands  the  responsibility  of  the  blood  of 
a  human  being,  the  fearful  responsibility  of  sending  a  human  soul 
unprepared  into  the  presence  of  Almighty  God.  But  I  insist  upon 
it,  gentlemen,  that  when  any  man,  drunk  or  sober,  enters  my  house 
with  loaded  gun,  capped  and  cocked,  ready  to  take  my  life,  there 
is  no  rule  of  law  or  ethics  that  requires  me  to  fly  from  the  presence 
of  such  danger.  To  retreat  in  such  a  case  but  increases  the  danger. 
To  such  a  man  you  should  stand  toe  to  toe  and  eye  to  eye,  and 
take  advantage  of  every  motion.  You  need  not  wait  to  be  shot,  out 
under  these  circumstances  you  may  rightfully  kill  your  assailant. 
This  would  be  self-defense.  It  was  thus  that  Calvin  Hatfield  was 
situated  on  the  twenty-seventh  of  November.  If  he  was  the 
defendant  and  Foster  had  been  slain,  how  soon  you  would  return  a 
verdict  of  not  guilty.  The  deceased  simply  stood  there,  in  the 
presence  of  this  defendant,  fearing  to  fly  and  unable  to  defend 
himself.  He  was  killed — and,  my  God,  was  not  this  murder — 
deliberate,  atrocious,  monstrous  murder?  Whether  the  deceased 
was  armed  with  a  knife  or  unarmed — whether  the  knife  was  open 
or  closed — whether  in  his  pocket,  on  the  floor,  or  in  his  hand,  the 
act  of  the  defendant  in  slaying  him  was  murder.  If  this  homicide 
was  committed,  as  I  insist  it  was,  and  as  I  shall  presently  show,  in 
pursuance  to  a  deliberately  formed  design,  the  crime  of  which  the 
accused  is  guilty,  is  murder  in  the  first  degree.  The  gentlemen 
have  read  but  little  law.  They  have,  however,  called  your  atten- 
tion to  a  single  authority.  It  is  briefly  this:  If  one  engages  in  a 
fight,  and  in  good  faith  seeks  to  withdraw  from  the  struggle,  and 
does  all  that  is  reasonably  in  his  power  to  do  so,  but  is  pressed  by 
his  adversary  and  is  put  in  imminent  peril,  he  may  then  slay  his 
antagonist  and  be  guiltless.  This  is  good  law,  and  I  am  content 
with  it.  But  it  has  no  application  here.  Gentlemen  tell  UF  that 


256  MODERN  JURY  TRIALS. 

the  struggle  commenced  at  the  door  of  the  middle  and  ended  at 
the  door  of  the  back  room — that  the  defendant  retreated  across  one 
room  to  the  distance  of  sixteen  feet.  Retreated  from  whom? 
From  an  unarmed  and  defenseless  man  1  What  a  retreat  was  that  ? 
Was  this  such  a  backing  out  as  showed  an  honest  purpose  to  with- 
draw from  the  fight  ?  But  there  was  no  fight.  Hatfield  had  not 
struck,  nor  had  he  attempted  to  strike  a  blow.  If  he  was  pursued 
by  an  unarmed  man,  why  does  he  use  the  muzzle  instead  of  the  butt 
of  the  gun  ?  But,  it  is  asked,  how  do  the  parties  cross  the  room, 
and  why  ?  The  problem  is  easy  of  solution.  The  defendant,  in 
jerking  his  gun  from  Mrs.  Owens,  makes  it  necessary  for  the 
deceased  to  close  with  him  in  order  to  save  his  life.  It  is  his  only 
hope.  He  rushes  toward  him  with  his  arms  open — the  defendant 
retreats  until  he  gets  the  mere  length  of  his  gun  in  advance  and 
then  fires.  This  is  the  evidence,  and  these  are  the  facts.  He  puts 
his  gun  within  a  foot  of  Hatfield's  face,  when  he  is  standing  or 
coming  toward  him  with  open  hands,  and  blows  his  head  from  his 
shoulders.  In  the  presence  of  these  uncontradicted  and  unmistak- 
able facts,  this  defendant,  by  his  counsel,  says  that  he  acted  in  self- 
defense.  To  what  desperate  straits  the  gentlemen  are  driven  !  To 
what  flimsy  pretexts  and  weak  excuses  they  are  put ! 

I  hope  you  understand  my  position  as  to  the  extent  the  knife 
figures  in  this  case.  I  assume,  first,  that  it  was  not  present,  in  the 
hands  of  the  deceased,  at  this  murder;  but,  if  you  doubt  this,  I 
confidently  assert  that  he  had  the  right  to  have  it  there,  and  that  it 
was  his  duty  to  have  used  it.  Why  parley  over  this  question  ? 
Who  sought  the  quarrel?  Who  provoked  the  difficulty?  Who 
made  threats  ?  Who  had  murder  in  his  heart,  and  went  out  in 
search  of  a  victim  ?  Was  it  poor  dead  Hatfield  ?  From  his  grave 
he  sends  out  his  protest  and  puts  in  his  denial.  Do  you  believe 
that  Hatfield  intended  to  injure  the  defendant?  Do  you  even 
think  that  the  defendant  thought  that  he  would?  No.  The 
defense  would  have  you  believe  that  Hatfield  intended  to  murder, 
and  that  he  went  into  the  presence  of  his  Maker  with  the  deep 
damnation  upon  his  soul.  You  do  not,  you  dare  not  believe  it, 
gentlemen.  I  will  now  dismiss  this  branch  of  the  discussion  with 
this  single  observation.  The  court  has  permitted  the  defendant  to 
put  in  evidence  his  own  statements  as  to  what  occurred  at  the  time 
of  the  homicide.  To  his  mother  and  sister  he  said  he  had  commit- 
ted the  act  in  defense  of  his  own  person,  that  the  deceased  had 
pursued  him  three  squares  with  the  knife  before  reaching  the 
house,  and  that  after  arriving  there  he  was  still  pressed  by  the 
deceased,  until  he  was  literally  driven  to  the  wall,  and  that,  when 


FOSTER-HATFIELD  TRIAL.  257 

he  could  fly  no  farther,  he  turned  and  shot  his  assailant.  Are  you 
to  believe  what  he  said  when  under  such  strong  inducements  to 
speak  falsely  ?  Under  ordinary  circumstances  this  evidence  would 
have  been  excluded.  These  statements  were  only  admitted,  gen- 
tlemen, to  show  his  mental  condition  at  the  time.  You  can  not 
consider  them  as  true,  nor  can  you  apply  them  to  any  other  branch 
of  this  case  than  that  to  explain  which  they  were  admitted.  The 
court  will  so  instruct  you. 

Gentlemen,  these  statements  of  the  defendant  are  glaringly  false 
and  absurd.  They  are  contradicted  by  all  the  evidence,  as  I  shall 
conclusively  demonstrate  as  I  proceed  with  this  argument.  These 
statements  disappear  like  mist  before  the  morning  sun  in  the  pres- 
ence of  the  truth.  John  Young,  the  little  boy  introduced  by  the 
defense,  told  you  that  he  saw  the  parties  together  on  West  street, 
two  squares  from  the  house;  that  when  the  defendant  was  attempt- 
iug  to  use  his  gun,  Hatfield  took  out  his  knife;  that  the  defendant, 
before  he  had  opened  it,  knocked  it  from  his  hands;  that  Hatfield 
picked  up  the  knife  and  returned  it  to  his  pocket  unopened,  and 
that  they  then  passed  on  together  toward  the  house.  The  boy  fol- 
lowed close  behind  them  and  saw  no  knife  and  no  pursuit.  Mr. 
Ramsey,  who  witnessed  the  same  transaction,  corroborates  the  boy. 
He  saw  the  defendant  attempting  to  shoot  the  deceased;  heard  him 
swearing  most  profanely  that  he  would  do  so,  but  saw  no  knife. 
He  says  that  the  deceased,  after  attempting  to  wrest  the  gun  from 
the  defendant's  hands,  stooped  down  and  gathered  up  a  handful  of 
sand,  but  immediately  threw  it  down.  The  parties  then  started 
toward  the  house.  They  walked  side  by  side — there  was  no  flying 
— no  pursuit.  Mr.  Ramsey  is  the  older  and  more  intelligent  wit- 
ness, and  you  can  safely  rely  upon  what  he  says.  The  boy  Young 
was  mistaken  about  the  knife. 

The  defendant's  statements  as  to  what  occurred  at  the  house  are 
also  lies.  Mrs.  Owens  and  Mrs.  Hatfield  flatly  contradict  him  on 
every  point.  Would  you  expect  a  murderer  to  tell  the  truth? 
Will  you  confide  in  the  statements  of  a  man  whose  hands  are  yet 
wet  in  human  gore — statements  made,  too,  to  save  his  life  ? 

The  gentlemen  who  conduct  this  defense  would  have  you  believe 
that  the  defendant,  under  all  the  circumstances  detailed  by  the 
witnesses,  having  provoked  the  quarrel,  having  brought  on  the 
rencontre,  if  any  there  was,  stands  guiltless  in  the  sight,  of  God  and 
man. 

Gentlemen,  I  have  now  done  with  this  question  of  self-defense. 
I  come  now  by  your  permission  to  present  the  case,  in  chief,  as  it  is 
understood  by  the  state.  So  far,  I  have  been  discussing  the 
17 


258  MODERN  JURY  TRIALS. 

defendant's  case.  In  the  further  pursuit  of  truth,  I  may  hav« 
occasion,  now  and  then,  to  refer  again  to  these  questions  of  self- 
defense  and  insanity.  I  hope  I  shall  not  tire  your  patience.  I 
know  it  is  not  as  laborious  to  hear  as  it  is  to  talk  in  this  crowded 
court-room  and  this  heated  and  unhealthy  atmosphere.  Tour 
responsibilities  are  much  greater  than  my  own.  You  feel  this,  I 
know.  You  hold  in  your  hands  the  balances  in  which  the  peace 
and  security  of  human  society  are  placed  upon  one  side,  and  a 
human  life  on  the  other.  You  have  a  just  appreciation  of  your 
solemn  obligations,  I  know,  and  I  feel  assured  that  you  will  hear 
me  patiently  to  the  end.  I  will  trouble  you  with  no  further 
apology,  but  proceed  as  rapidly  and  briefly  as  I  can  to  a  conclusion. 

Gentlemen,  I  maintain  that  the  defendant  is  guilty,  if  guilty  at 
all,  of  murder  in  the  first  degree.  I  shall  so  discuss  the  case.  It 
is  that  or  nothing.  » 

I  will  discuss  it  because  I  believe  it  is  that  or  nothing.  I  will 
discuss  it  because  I  am  asking  no  compromise  in  this  case.  I  dis- 
cuss it  because  I  want  a  conviction  in  the  case,  if  the  defendant 
ought  to  be  convicted.  On  the  other  hand,  I  want  you  to  acquit 
him,  if  there  ought  to  be  an  acquittal.  There  is  no  compromise  in 
this  case.  It  is  your  duty  to  hew  to  the  line,  let  the  chips  fall 
where  they  may.  It  is  your  duty  to  find  the  truth  under  the  law 
and  the  evidence,  and  when  you  find  it  to  put  that  truth  into  your 
verdict. 

Gentlemen,  it  is  murder  in  the  first  degree.  I  will  not  tediously 
elaborate  upon  this  subject.  I  will  read  to  you  the  statute,  the 
law  of  the  State,  that  rests  upon  us  all.  You  accepted  it  when  you 
took  upon  yourselves  the  rights  and  obligations  of  citizenship. 
And  you  have  added  to  that  obligation  the  oath  you  have  taken  as 
jurors  in  this  case  to  enforce  it.  The  law  says  that  "if  any  person 
of  sound  mind  shall  purposely,  and  with  premeditated  malice,  kill 
any  human  being,  he  shall  be  guilty  of  murder  in  the  first 
degree."  That  is  the  statutory  definition  of  the  crime.  It  is  easily 
understood.  I  call  your  attention  to  it  now.  When  I  pass  from 
it  I  shall  not  recur  to  it  again.  I  have  heretofore  discussed  sound- 
ness of  mind.  What  does  "  purposely  "  mean  ?  It  means  inten- 
tionally, designedly.  This  is  its  meaning  in  the  ordinary  accepta- 
tion, and  it  means  no  more  in  the  statute.  What  does  "malici- 
ously" mean  ?  To  constitute  the  crime,  the  killing  must  not  only 
be  done  purposely,  but  also  maliciously.  It  is  a  word  frequently 
used  by  us  all.  It  means  simply,  in  this  connection,  intense  hatred 
in  the  heart  of  the  murderer  towards  his  victim.  It  is  evidenced, 
says  a  law  writer,  by  a  depraved  or  malignant  spirit.  It  is  eihib- 


FOSTER-HATFIELD  TRIAL.  259 

ited,  when  a  wrong  doer  acts  wholly  regardless  of  social  duty.  It 
is  evidenced  by  a  rooted  design  to  do  mischief.  It  means,  in  com- 
mon parlance — revenge.  In  legal  contemplation  its  presence  is 
always  presumed  in  the  perpetration  of  an  unlawful  act.  If  you 
should  step  upon  the  street  and  wantonly  take  the  life  of  a  passer- 
by, the  presumption  would  be  that  it  was  done  maliciously.  My 
brother  Guffin  says  malice  is  of  two  kinds.  I  would  prefer  saying 
that  the  evidence  by  which  it  is  established  is  two-fold.  When 
the  proof  shows  that  the  defendant  has  made  threats  which  have 
been  executed  in  the  commission  of  the  crime  with  which  he  is 
charged — when  he  has  made  preparation  for  its  commission — as  by 
lying  in  wait,  or  procuring  a  gun  and  seeking  his  foe,  then  the  law 
says  the  malice  is  express,  because  the  threats  and  the  preparation 
are  the  expression  of  it.  Where  the  same  crime  is  committed,  but 
the  proof  does  not  show  this  antecedent  expression  of  malice, 
malice  is  implied.  If  I  should  go  into  your  stable  and  cut  the 
throat  of  your  horse,  even  without  motive,  it  would  be  a  malicious 
act.  If  malice  is  implied  in  my  so  taking  the  life  of  a  dumb  brute, 
how  much  more  reasonably  and  strongly  is  malice  presumed  when 
the  life  of  a  human  being  is  taken.  I  shall  not  take  up  your  time 
in  explanation  of  the  word.  You  know  what  malice  means.  It 
presumedly  exists  when  the  act  is  intentionally  done,  and  is  serious 
and  dangerous  in  its  character.  Where  there  is  no  known  cause, 
you  are  to  presume  malice  in  the  killing  of  a  human  being. 
Threats  are  not  necessary  to  make  it  murder  in  the  first  degree. 
It  is  needless  to  refine  upon  this  subject.  Where  there  has  been 
time  for  thought,  deliberate  thought,  and  that  time  has  been 
employed  in  deliberation  of  the  purpose  to  do  the  unlawful  act, 
and  the  act  is  by  the  mind  resolved  upon  and  then  committed,  the 
act  is  done  with  premeditation,  purposely,  and  maliciously.  And 
this  is  so  whether  the  intention  to  do  the  act  was  formed  a  minute, 
or  a  year,  before  the  commission  of  it.  There  is  no  restriction,  or 
fixed  limitation  as  to  time  in  this  regard.  It  is  as  much  murder  if, 
in  meeting  you  in  the  street,  I  then  determine  to  kill  you  and  do 
there  kill  you,  as  if  I  had  nursed  that  purpose  in  my  heart  for 
years.  Just  as  much  murder  in  the  first  degree  as  if  I  had  thereto- 
fore resolved  upon  your  death,  and  with  "patient  search  and  vigil 
long  "  had  hunted  and  followed  you  through  the  land  and  at  last 
killed  you.  It  is  not  necessary  that  I  should  intend  especially  to 
kill  you  to  make  it  deliberate  murder.  The  highwayman  who 
stands  by  the  roadside  awaiting  the  coming  of  the  first  traveler,  to 
demand  his  money,  be  he  whom  he  may,  if,  on  his  coming,  in  an 
attempt  to  rob  him  he  kill  him,  he  is  guilty  of  deliberate,  premedi« 


260  MODERN  JURY  TRIALS 

tated  murder.  Let  us  look  at  the  facts  in  this  case  to  see  whether 
it  is  a  case  of  murder,  of  murder  in  the  first  degree,  murder  pur- 
posely and  maliciously  committed — committed  with  deliberation 
and  premeditation.  The  proof  is  clear  and  unmistakable.  There 
can  be  no  escape  from  it.  It  is  nothing  less.  To  write  anything 
else  in  your  verdict  in  the  light  of  the  evidence  would  be  at  the 
expense  of  truth — it  would  be  a  legal  lie.  What  is  the  uncontro- 
verted  evidence  in  this  case?  There  were  frequent  quarrels 
between  the  defendant  and  the  deceased.  The  motive  springs 
here.  I  am  indifferent  whether  or  not  you  consider  the  utterances 
of  the  accused  eighteen  months  before  the  homicide.  The  evi- 
dence is  overwhelming,  even  if  the  State  were  confined  to  the  fatal 
27th  day  of  November.  I  care  not  to  go  beyond  that.  I  care  not 
to  go  into  the  petty  quarrels  and  threats  indulged  in  prior  thereto 
by  and  between  Foster  and  Hatfield.  If,  under  the  same  circum- 
stances, Foster  had  been  killed  by  Hatfield,  the  crime  of  Hatfield 
would  have  been  the  same  as  that  for  which  James  Foster  stands 
on  trial  to-day — murder  in  the  first  degree. 

These  threats  of  Hatfield  stand  in  no  legal  relation  to  the  case. 
If  there  is  any  evidence  looking  toward  self-defense,  you  may  use 
these  threats,  in  that  connection.  That  defense,  however,  being 
wholly  unsupported,  the  evidence  of  Hatfield's  threats  should  be 
withdrawn  from  your  consideration. 

Tom  Reeves  has  been  attacked — impeached.  We  don't  rely 
upon  his  testimony.  So  far  as  I  am  concerned,  it  will  not  be 
alluded  to  in  this  argument.  I  do  not  ask  you  to  lay  the  weight  of 
a  feather  on  this  defendant  because  of  what  Reeves  has  sworn  to 
during  the  progress  of  this  trial.  He  has  neither  weakened  or 
strengthened  this  prosecution.  So  far  as  I  have  the  power  to  do 
BO,  I  withdraw  him  from  this  case. 

Gentlemen,  we  now  come  to  the  morning  of  the  twenty-seventh 
of  November,  1871.  Calvin  Hatfield  was  on  that  morning  alive, 
and  his  hopes  and  aspirations  were  probably  as  bright  as  yours  or 
mine.  He  was  yet  a  young  man — his  life  mission  scarce  half  per- 
formed. He  was  a  husband  and  a  father,  and  had  five  helpless 
children  committed  to  his  keeping.  This  was  his  status  at  nine 
o'clock  on  that  morning.  A  few  hours  afterwards  he  lay  bleeding 
and  lifeless — his  wife  a  widow,  his  children  orphans,  and  they,  poor 
and  friendless,  left  to  meet  the  trying  realities  of  life  without  a 
father's  or  a  husband's  care  or  counsel. 

You  are  now  to  consider 

"The  deep  damnation  of  his  taking  off." 


FOSTER-HATFIELD  TRIAL.  261 

The  intention  of  the  defendant  on  that  morning  was  probably  to 
commit  a  double  murder.  The  first  we  hear  of  him  on  that  morn- 
ing he  is  threatening  both  Reeves  and  the  deceased.  It  is  certain 
that  when  he  flourished  his  knife  in  the  presence  of  Mrs.  Owens, 
and  before  he  procured  and  loaded  his  gun,  his  threats  were  more 
particularly  directed  toward  Tom  Reeves,  but  it  was  otherwise 
when  he  returned  with  his  gun.  Then  Hatfield,  and  he  only,  was 
the  subject  of  conversation.  Mr.  Mattler  falls  into  an  error  when 
he  tells  you  that  the  defendant,  on  that  morning  before  coming  up 
into  the  city,  made  no  threats  of  violence  toward  the  person  of  the 
deceased.  He  is  mistaken,  as  you  will  observe  when  I  call  your 
attention  to  the  evidence  of  Mrs.  Hatfield. 

Gen.  Brown  here  read  from  the  phonographer's  notes  of  the  evi- 
dence: "When  he  came  back  with  the  gun,"  says  Mrs.  Hatfield, 
"he  said  he  had  loaded  it  with  slugs  of  iron.  He  then  asked  me" 
— Oh,  the  heartless  depravity  of  the  man — how  it  chills  me  to 
repeat  it — "he  asked  me,  'Sally,  can  you  raise  five  little  children 
alone /  I  said  'No,  Jim,  I  can't.'"  Think  of  his  unfeeling,  heartless 
reply:  "Yes,  by  G — d,  you  can,  Sally;  it  will  be  hard  for  you,  but 
you  can  do  it."  I  ask  you  to  let  these  words  sink  deep  into  your 
very  souls.  I  would  put  them  there  with  emphasis,  because  they 
show  the  spirit  that  animated  the  subsequent  conduct  of  this 
defendant.  "Can  you  take  care  of  five  children,  Sally?"  "No, 
Jim,"  responded  that  agonized  mother,  and  wife.  "  No,  Jim,  I 
can't."  "Yes,  you  could,  but  it  would  go  G — d  d — m  hard." 
What  did  he  mean  ?  Toward  whom  this  malice  ?  In  what  direc- 
tion went  out  this  spirit  of  revenge,  and  who  was  to  be  the  victim 
of  this  depraved  and  malignant  man  ?  Mrs.  Owens  relates  the 
same  facts,  and  puts  in  the  mouth  of  the  accused  the  same  lan- 
guage. Were  these  threats  directed  at  Reeves  ?  What  did  he 
mean  in  putting  this  cold-blooded  question  to  Mrs.  Hatfield  ?  Was 
it  not  murder,  and  the  murder,  too,  that  he  committed  in  three 
hours  afterward?  In  the  further  conversation  at  this  time  he  tells 
this  woman  that  he  had  killed  her  husband,  and  would  bury  him 
like  a  gentleman.  Does  not  this  explain  the  true  intent  and  mean- 
ing of  what  he  said  before?  But  as  we  pass  forward  in  the  evi- 
dence all  doubts  clear  away.  The  defendant  and  Mrs.  Hatfield 
start  up  to  the  city  in  search  of  deceased,  and  after  going  some 
half  mile  they  meet  Mrs.  Foster.  Here  these  women  try  to  prevail 
on  the  accused  to  return.  Failing  in  this,  they  use  argument  and 
entreaty  to  induce  him  to  give  up  the  gun.  He  obstinately  refuses, 
saying,  "  I  am  going  to  kill  myself  a  man  with  it."  Kill  who  ? 
For  whom  was  he  searching,  and  whom  did  he  subsequently  mnr- 


262  MODERN  JURY  TRIALS. 

der?  We  next  find  him  in  Schwigo's  saloon,  engaged  in  putting  a 
stranger  through  the  infantry  drill,  according  to  Hardee.  The 
man  who  stood  behind  the  bar  tells  you  he  did  it  correctly.  The 
gentlemen  on  the  other  side  put  it  in  proof  that  at  t>his  time  he 
removed  the  cap  from  the  gun,  and  threw  it  on  the  floor.  This 
was  done  at  the  saloon-keeper's  request,  as  he  had  discovered  the 
gun  to  be  loaded.  This  cap  has  been  preserved  with  great  care, 
and  is  brought  here  by  the  witness.  I  confess  myself  at  a  loss  to 
divine  what  the  defense  expect  to  make  out  of  this  fact.  I  thank 
them  for  having  put  this  circumstance  in  evidence,  for  it  supports 
our  theory  of  premeditation,  as  I  hope  to  show  you,  and  is  consis- 
tent with  all  the  other  facts  in  evidence.  Was  there  a  cap  on  the 
gun  at  the  time  of  the  homicide?  That  the  gun  was  discharged  is 
overwhelming  evidence  that  there  was.  Mrs.  Hatfield  swears  that 
she  saw  one  on  the  tube  a  moment  before  the  shooting.  This 
being  so,  I  ask  the  learned  gentlemen,  and  I  put  the  question  to 
the  jury,  why  was  another  cap  put  on  the  gun  after  leaving  the 
saloon  ?  Was  the  defendant  intending  to  leave  the  city  ?  Cer- 
tainly not.  Was  it  necessary  to  have  a  gun  charged  and  capped  at 
nood-day  in  the  heart  almost  of  a  populous  city  like  this  ?  Was 
anybody  to  be  killed  ?  Yes,  gentlemen,  he  "  was  going  to  kill 
himself  a  man,"  and  that  man  was  Calvin  Hatfield.  This  little 
circumstance  of  the  substitution  of  that  cap  is  an  important  one, 
and  tends  most  strongly  to  show  the  presence  of  the  premeditation 
and  purpose  to  kill.  It  also  shows  thought,  purpose  and  prepara- 
tion. This  destroys  the  theory  that  the  defendant  was  a  "  mere 
machine  " — an  irresponsible  being,  for  here  was  the  act  of  a  sane 
planning  mind — one  adapting  measures  to  the  end  sought  to  be 
attained.  I  repeat  the  question,  gentlemen,  why  did  the  defendant 
renew  the  cap  on  the  gun  ?  His  subsequent  conversation  and  con- 
duct unmistakably  answer  the  question.  He  leaves  the  saloon  in 
company  with  the  deceased  and  Mr.  Owens.  The  deceased  was 
before — Owenij  in  the  middle,  and  the  defendant  in  the  rear,  when 
they  started  homeward.  The  defendant  soon  passed  to  the  front, 
the  gun  on  his  arm,  saying  to  Owens  as  he  passed,  "  I  have  the 
dead  wood  on  him."  No  name  was  mentioned  in  connection  with 
this  threat,  but  who,  gentlemen,  was  referred  to  ?  You  know  the 
name  too  well  to  make  it  necessary  that  I  should  repeat  it.  Next 
in  the  order  of  events  are  the  occurrences  on  West  street.  Here 
the  deceased  is  threatened — here  the  defendant  makes  an  attempt 
on  his  life,  and  here  is  his  first  effort,  on  that  day,  "  to  kill  himself 
a  man."  It  is  at  this  point  that  the  boy  Young  says  that  he  said, 
"  Halfield,  I  will  let  you  live  until  you  get  to  the  house,  and  then 


FOSTER-HA.TFIELD  TRIAL.  263 

['11  kill  yon."  Strange  coincidence  !  Hatfield  was  killed  at  the 
house,  and  immediately  after  his  arrival  there. 

Gentlemen,  I  have  already  discussed  somewhat  in  detail  the 
transaction  at  the  house.  You  can  not  doubt  that  Mrs.  Owens 
states  what  occurred  there  truthfully.  Never  was  a  witness  more 
worthy  of  credit.  She  may  be  old,  and  poor,  and  ignorant,  but 
she  is  honest  and  appreciates  the  obligations  of  an  oath.  She  feels 
the  awful  responsibilities  of  this  occasion.  And  seldom  has  a  wit- 
ness stood  in  relation  to  a  case  as  she  does  to  this.  I  will  not  say 
that  she  has  no  feeling  in  the  case,  but  I  can  say  that  she  has  no 
feeling  that  could  move  her  from  the  line  of  truth.  Her  sym- 
pathies must  go  out  toward  the  accused  as  well  as  his  victim;  she 
testifies  in  the  presence  of  the  grave  of  one  murdered  son-in-law, 
and  in  the  presence  of  another  who  stands  under  the  shadow  of 
prison  walls  or  the  gallows. 

Then,  gentlemen,  so  far  this  case  is  briefly  this:  On  the  morning 
of  the  twenty-seventh  of  November,  the  defendant  procures  and 
loads  a  gun — loads  it  "  with  slugs  of  iron."  He  avows  his  deter- 
mination to  kill  the  deceased,  goes  in  search  of  him,  finds  him,  and 
after  several  unsuccessful  attempts,  kills  him.  He  kills  him  with- 
out cause — without  excuse,  and  in  cold  blood.  This  is  the  State's 
case.  Will  you  say,  gentlemen,  with  these  facts  before  you,  that 
the  homicide  was  not  committed  with  purpose,  malice  and  deliber 
ation  ?  It  is  your  duty,  gentlemen,  to  look  this  case  squarely  and 
sternly  in  the  face.  Look  at  it  as  men  who  feel  the  necessity  for 
the  administration  of  simple  justice.  Look  at  it  as  men  desiring 
to  see  the  law  enforced,  that  there  may  be  peace,  order  and  secu- 
rity in  the  land.  Look  at  it  with  the  view  of  administering  the 
law  in  its  spirit,  and  so  write  your  condemnation  of  this  monstrous 
crime  in  your  verdict,  that  in  the  future  our  wives  and  little  ones 
may  lie  down  at  night  and  sleep  peacefully  and  quietly,  without 
apprehension  or  alarm.  Gentlemen,  the  time  has  come  when  the 
law  must  be  more  inflexibly  administered,  or  the  bludgeon  and 
bowie  knife  will  usurp  the  place  of  the  law.  The  time  was,  and  I 
confess  that  I  have  lately  feared  its  return,  when  he  was  most 
secure  who  possessed  the  strongest  muscle  and  the  most  malignant 
spirit. 

Another  step  in  the  history  of  that  fatal  day,  and  we  are  done. 
Immediately  upon  killing  Hatfield,  the  defendant  attempted  to 
«scape.  Only  the  guilty  "  fly  when  none  pursue."  But  it  is 
insisted  by  the  defense  that  it  was  a  most  bungling  and  unskillful 
attempt  at  flight.  You  would  not  expect  one  having  the  conscious- 


264  MODERN  JURY  TRIALS 

ness  of  such  deep  sin  upon  his  soul  to  be  otherwise  than  cowardly 
and  confused. 

He  not  only  attempted  to  escape  from  the  scene  of  his  crime,  but 
another  strong  and  incontrovertible  evidence  of  his  guilt  grows 
out  of  the  fact  that  he  deliberately  frames  a  lie  for  the  purpose  of 
his  defense.  He  tells  a  broad,  palpable  falsehood  that  he  might 
allay  the  fears  of  his  mother,  and  make  it  avail  him  if  he  should  be 
captured  and  brought  to  trial.  To  his  mother  and  sister  he  set  up 
a  most  excellent  defense,  and  a  most  rational  one,  but  it  was  utterly 
false.  He  varies  the  story  a  little,  however,  upon  leaving  his 
mother,  for  he  exhibits  a  knife  to  Miss  Chesney,  and  says,  "  I've 
just  killed  a  man,  and  ought  to  have  done  it  long  ago."  To  Mrs. 
Hasselberry  he  said,  "  I  expect  I've  killed  a  man  ;  if  I  haven't,  Pll 
go  back  and  finish  the  job."  He  makes  similar  remarks  to  Clay 
Rice.  These  several  conversations  all  occur  within  a  few  moments 
after  the  tragedy.  I  need  notice  these  statements  no  further. 

The  defendant  is  next  found  in  a  saloon  on  the  Bluff  Road,  in 
the  southern  part  of  the  city.  It  was  here,  you  remember,  that  he 
was  found  by  the  men  in  whose  wagon  he  was  subsequently  cap- 
tured. When  Myers  came  into  the  saloon,  he  remarks  "  that  he 
had  just  heard  that  a  man  by  the  name  of  Foster  has  killed  his 
brother-in-law."  The  defendant  at  once  answers,  "My  name  is 
Foster,  and  I  have  just  heard  of  the  circumstance;  but  the  man 
that  killed  his  brother-in-law  is  of  the  name  of  Roster,  not  Foster." 
If  this  defendant  was  an  irrational  man,  this,  at  least,  was  a  most 
rational  attempt  to  escape  detection. 

But  something  has  been  said  about  his  conduct  when  brought 
into  the  presence  of  the  deceased  at  the  undertaker's.  It  is 
assumed  that  his  stoical  indifference  there,  under  such  solemn  cir- 
cumstances, is  proof  of  some  sort  of  mental  derangement. 

Gentlemen,  are  you  to  say  that  one  who  could  deliberately  mur- 
der a  friend,  a  relative,  one  at  whose  board  he  had  sat — under 
whose  roof  he  had  found  shelter — one  who  had  stood  by  him  in 
health  and  who  administered  to  him  when  sick,  could  not  also  look 
complacently  and  coolly  on  his  bloody  work  after  it  was  accom- 
plished ?  Is  it  to  be  said  that  the  defendant  is  not  accountable 
because  his  crime  is  more  revolting  and  atrocious  than  those  usually 
committed  ?  Will  you  set  a  premium  on  butchery  by  acquitting 
because  the  work  is  most  wicked  in  its  conception  and  cruel  and 
fiendish  in  its  execution  ?  Would  the  gentleman  have  you  so  write 
it  in  your  verdict  ? 

The  whole  conduct  of  the  accused  after  the  commission  of  this 
great  crime,  has  been  that  of  a  sane  man.  His  attempt  to  escape, 


FOSTER-HATFIELD  TRIAL.  265 

his  ringing  the  change  on  the  name  at  the  saloon,  his  exhibition  of 
his  cut  hand,  and  his  attempt  to  get  the  driver  to  remember  it  so 
he  could  swear  to  it,  his  denial  of  his  name  to  the  police  at  the 
time  of  his  arrest,  and  his  conversations  with  the  jailor,  are  all  the 
clearest  possible  proofs  of  his  entire  sanity. 

He  may  have  been,  to  sortie  extent,  under  the  influence  of  liquor, 
but  it  won't  do  to  acquit  him  simply  because  he  was  drunk.  This 
would  be  indeed  a  dangerous  precedent  in  this  country  of  saloons. 
I  say  it  would  be  most  dangerous,  for  most  of  the  crimes  of  the 
day — the  murders,  arsons,  and  robberies  all  over  the  land,  are  com- 
mitted by  persons  more  or  less  in  a  state  of  intoxication. 

The  solemn  question  is  upon  you — was  this  homicide  the  act  of 
a  responsible  being,  was  it  done  without  legal  excuse,  and  was  it 
done  with  purpose,  malice  and  deliberation  ?  If  you  are  able  to 
answer  this  question  in  the  affirmative,  your  duty  is  clear — the 
crime  is  murder  in  the  first  degree,  and  no  other  crime  whatever. 
You  have  so  written  it  in  your  statutes,  and  these  statutes  you 
have  solemnly  sworn  to  observe. 

Your  duty  is  a  clear  one,  and  I  feel  confident  that  you  have  the 
courage  to  perform  it.  Unless  you  do  so,  gentlemen,  honestly  and 
faithfully — unless  you  fully  perform  the  solemn  obligation  you 
took  upon  yourselves  at  the  beginning  of  this  trial,  you  are  not 
worthy  the  respect  and  confidence  of  honest  men.  Courts,  and 
indeed  governments,  are  powerless  in  the  punishment  of  the  guJlty 
unless  juries  fearlessly  do  their  duty.  A  faithless  and  imperfect 
administration  saps  the  foundations  of  society,  and  excites  the 
people  to  anarchy  and  misrule.  We  need  not  go  far  to  find  the 
illustration.  In  our  own  proud  Indiana,  with  its  schools,  bibles 
and  churches,  within  the  last  year  or  two  a  number  of  victims  have 
been  immolated  by  the  demon  mob.  Administer  the  law,  purify 
the  fountains  of  justice,  protect  society  from  the  vicious,  and 
society  will  feel  safe  and  good  order  will  reign  within  our  borders. 
Let  me  appeal  to  you  to  do  your  whole  duty  in  this  case,  even 
though  your  verdict  "may  touch  the  heart  of  a  mother  or  a  sister." 
Punishment  must  be  certain,  that  society  may  be  safe.  It  is  some- 
times necessary  to  make  an  example,  and  if  there  ever  was  such  a 
time  it  is  upon  us  now. 

The  learned  counsel  attempt  to  excite  your  sympathy  for  thia 
unfortunate  man.  I  do  not  complain  of  this.  Think  as  kindly  as 
you  may  of  the  erring — it  is  natural,  it  is  right.  But,  gentlemen, 
even  in  the  matter  of  sympathy,  there  is  another  side  to  this  case. 
Take  this  widow  and  these  orphaned  children,  and  go  to  that  lonely 
kirkyard,  and  standing  by  the  grave  of  Calvin  Hatfield,  unmarked 


266  MODERN  JURY  TRIALS. 

by  stone  or  monument,  and  in  view  of  the  great  sorrow  that  thit 
defendant  has  brought  into  the  world,  write  your  verdict.  When 
you  have  done  this,  the  demands  of  public  justice  will  be  satisfied 
and  a  broken  lawfully  vindicated. 

Found  guilty  and  hung. 


THE    TRIAL    OF   UNDERWOOD. 

Before  JUDGE  SWIFT,  at  Detroit,  May,  1874. 

The  salient  points  of  this  romantic  trial  will  appear  in  every  par- 
agraph, and  need  no  introduction.  It  developed  the  peculiar  fact 
that  jealousy  is  insanity,  only  in  a  lesser  degree.  The  argument  of 
counsel  is  a  graphic  and  highly  interesting  manner  of  comparing 
a  modern,  commonplace  character  to  the  melancholy  Dane  of 
Shakespeare's  masterpiece.  '  Underwood  and  Hamlet  were  very 
unlike,  but  the  love  mania  of  one  may  have  equaled  the  clouded 
reason  of  the  other.  Underwood  was  plain,  of  weak  mental 
developments,  not  of  sufficient  interest  personally  to  adorn  a  chap- 
ter, but  his  remarkable  career,  his  singular  tragedy,  and  the 
ingenious  defense,  make  a  novel  and  entertaining  history  of  some- 
thing original  on  emotional  insanity. 

It  will  be  read  with  a  relish  by  those  who  would  know  "the 
hidden  mystery  of  a  mind  diseased."  The  popular  plea  of  emo- 
tional insanity,  in  its  rapid  development  from  the  trials  of  Cole, 
Sickles,  Harris,  McFarland,  received  additional  force  by  a  supple- 
mental cause,  of  jealousy,  as  developed  in  this  peculiar  case.  A 
more  concisely  framed  defense,  and  plausible  showing  of  cause 
and  effect,  has  seldom  been  recorded.  The  line  of  argument  shows 
not  only  jealousy  as  a  frequent  cause,  but  that  it  leads  a  disordered 
mind  to  attack  its  objects  most  admired,  and  not  in  anger  or 
revenge,  but  like  the  ancient  Roman  fathers,  to  protect  the  loved 
object  from  an  imagined  harm. 

The  development  is  unique;  the  reasons  cogent  and  convincing. 
Science  and  Shakespeare  are  aptly  cited.  The  climax  of  the 
orator's  effort  is  in  the  meeting  and  embrace  of  the  treasured  letter 
and  the  murderous  knife,  where  they  slip  into  the  pocket  side  by 
•i<le,  and  "  embrace  in  blood."  And  again,  where  "  the  struggling 


TRIAL  OP  UNDERWOOD.  267 

spirit  beats  against  the  walls  of  clay,"  saying,  "Someone  has 
stabbed  me  !  Who  can  it  be  ?  "  Many  scenes  are  tragic,  but  the 
case  is  so  brief  that  all  of  it  should  be  read  to  be  appreciated. 

A  single  incident  in  this  trial  will  be  of  value  to  students  seek- 
ing skill  in  the  management  of  a  prisoner.  Whether  acting  or  not, 
his  statement  was  in  a  key  too  low  to  be  understood  by  the  jury, 
who  called  for  louder  tones,  until,  finally,  the  prisoner  was  allowed 
to  stand  before  them,  more  in  the  attitude  of  counsel,  while,  in 
trembling  tones,  charged  with  emotion,  in  his  ignorant,  awkward 
style,  in  striking  contrast  with  the  vigorous  manner  of  Mr.  Chip- 
man,  who  stood  near  him.  Underwood's  appearance  was  that  of  a 
poor,  broken,  demented  simpleton,  with  low  forehead,  poorly  devel- 
oped mind,  in  tears,  forgetful,  bewildered,  scarcely  knowing  how 
one  word  would  match  another,  he  presented  a  real  picture  of 
imbecility,  and  long  before  he  closed  his  rambling  story,  in  an 
English  brogue,  broken  by  sobs,  the  jury  believed  the  quaint  words 
of  an  old  lady  witness,  who  said  of  him:  "Tommy  was  always 
queer  like."  Judge  Chipman's  skill  was  used  in  intensifying  this 
homely  expression  and  the  prisoner's  statement  with  a  masterly 
appeal  for  his  client.  But  he,  even,  admitted  that  the  prisoner's 
statement  was  the  most  eloquent  of  all  defenses  that  could  be  made 
in  his  behalf. 

William  T.  Underwood  was  indicted  at  the  April  term,  1874,  in 
the  Recorder's  Court  of  Detroit,  for  the  murder  of  Charlotte 
Pridgeon  on  the  sixth  of  the  preceding  month.  The  circumstances 
of  the  case  were  peculiarly  revolting,  viewed  in  the  light  of  the 
prisoner's  sanity.  The  murdered  woman  was  his  mistress,  of 
whom  he  was  passionately  fond,  and  he  killed  her  in  broad  day- 
light, in  a  public  street,  with  a  sailor's  knife  which  he  always  wore 
about  his  person.  He  immediately  delivered  himself  up,  avowed 
the  act,  bitterly  bemoaned  it,  and  attempted  his  own  life  during 
his  imprisonment  prior  to  his  trial. 

Public  indignation  was  intense,  the  press  was  filled  with  denun- 
ciations of  the  murderer,  demanded  a  speedy  trial  and  convic- 
tion, and  crowds  thronged  around  the  prisoner  when  passing  from 
the  jail  to  the  place  of  trial,  and  were  with  difficulty  prevented 
from  using  personal  violence. 

It  was  expected  the  prisoner  would  plead  guilty,  as  nothing  was 
known  of  his  previous  history,  and  when  it  was  announced  that  he 
had  employed  counsel  to  defend,  it  was  regarded  as  useless,  and 
when  arraigned  in  court,  so  strongly  was  the  judge  impressed 
with  this  prevailing  public  sentiment,  although  one  of  the  oldest 
and  best  of  the  criminal  judges  upon  the  bench,  he  asked  of  the 


268  MODERN  JURY  TRIALS 

prisoner's  counsel,  when  a  delay  of  trial  was  requested,  what  possi- 
ble defense  there  could  be  to  the  accusation.  Indeed,  the  defense 
was  expected  to  be  more  in  the  nature  of  the  guarding  of  the  right 
of  the  accused  than  an  attempt  to  defend  against  the  crime. 

The  trial  was  postponed,  that  the  prisoner  might  take,  by  depo- 
sition, testimony  in  England,  where  he  had  formerly  lived  and  his 
family  then  lived.  A  plea  of  "insane  impulse,"  or  " temporary 
insanity,"  was  interposed. 

The  first  trial  came  on  before  the  recorder  at  the  May  term,  1874. 

The  defense  which  had  been  pledged  was  ridiculed  by  the  press, 
and  public  sentiment  was  overwhelmingly  against  the  prisoner,  so 
that  it  was  with  great  difficulty  a  jury  was  obtained.  The  prose- 
cuting attorney,  Fitzwilliam  H.  Chambers  (now  circuit  judge  of 
the  county),  conducted  the  prosecution,  and  Henry  M.  Cheever  the 
defense. 

The  testimony  for  The  People  was  short,  direct,  and  uncontra- 
dicted.  The  knife  was  found  in  the  prisoner's  hand  after  the 
killing,  covered  with  blood,  and  he  confessed  the  act  immedi- 
ately to  the  officers  and  to  others.  The  girl,  upon  her  death-bed 
(she  lived  but  a  few  moments),  said  simply  this  as  to  the  manner  of 
her  death:  "I  am  dying;  some  man  has  struck  me." 

It  appeared  that  Charlotte  Pridgeon  had  been  the  mistress  of  the 
prisoner  for  some  months;  that  he  had  nearly  supported  her  from 
his  hard  earnings,  and  that  they  were  at  one  time  engaged  to  be 
married.  The  testimony  for  the  defense  was  to  the  effect  that  dur- 
ing her  life  of  criminal  intimacy  with  Underwood  she  had  con- 
stantly given  him  occasion  for  jealousy  by  her  intimacy  with  other 
men;  that  they  had  frequently  quarreled,  and  as  frequently  been 
reconciled;  that  just  before  she  met  her  death  he  had  met  her  by 
special  appointment;  that  she  taunted  him  with  his  impoverished 
appearance  and  ragged  clothing;  that  he  replied  that  he  had  no 
better,  that  he  had  given  to  her  his  money;  that  she  drew  from  her 
pocket  a  picture  of  another  man,  taunted  him  with  the  fact  that 
she  was  going  to  live  with  this  man  in  another  city,  and  concluded 
by  a  positive  command  that  he  should  never  seek  her  presence 
again.  At  his  earnest  solicitation,  she  consented  to  walk  with  him 
for  a  few  minutes  in  the  street. 

This  interview,  up  to  the  time  of  their  going  into  the  street  for 
a  walk,  was  overheard  by  witnesses  and  detailed  in  court.  They 
left  the  house  before  dark,  and  from  that  moment  no  person  could 
be  found  who  saw  them  together.  Half  an  hour  after  leaving, 
Charlotte  Pridgeon  staggered  into  the  house  alone,  mortally 


TRIAL  OF  UNDERWOOD.  269 

wounded,  stabbed  in  her  left  breast,  exclaiming,  "  I  am  dying,  a 
man  has  struck  me  ! "  and  shortly  expired. 

This  closed  the  testimony  of  The  People,  so  far  as  the  facts  of 
the  life  and  intimacy  of  the  parties  and  the  death  of  Charlotte 
Pridgeon  was  concerned.  Testimony  was  then  offered,  taken  in 
England  by  deposition,  of  Mrs.  Mary  Hanshaw,  the  prisoner's 
mother,  giving  a  perfect  histoiy  of  the  life,  habits  and  peculiarities 
of  the  prisoner,  from  his  infancy  until  he  was  fifteen  years  of  age. 
It  appeared  that,  when  four  years  of  age,  he  fell  from  a  second- 
story  window,  striking  upon  his  head,  was  unconscious  from  the 
fall,  and  ever  after  acted  strangely  at  times.  One  of  his  peculiari- 
ties was  a  ravenous  appetite,  he  devouring  anything  which  came 
within  his  reach  in  the  shape  of  food;  a  strange  habit  of  breaking 
out  into  fits  of  wild  laughter  in  the  midst  of  ordinary  conversation, 
or  of  singing  a  line  of  some  song  when  conversing,  and  then 
resuming  his  conversation.  He  was  employed  as  a  butcher's  boy, 
and  was  discharged  because  he  could  not  remember  the  location  of 
the  customers'  houses.  That  upon  different  occasions  he  would 
lock  himself  in  rooms  of  outhouses,  remaining  for  hours  and  days 
secluded  entirely.  Hereditary  insanity  was  also  shown,  his 
grandmother  and  great-grandmother  were  both  insane,  were  on 
several  occasions  confined  in  asylums,  his  great-grandmother  dying 
in  bedlam,  and  his  uncle  shot  himself  while  laboring  under  tem- 
porary insanity. 

At  the  age  of  fourteen  he  became  a  sailor,  and  from  that  time 
until  he  was  thirty-three  years  of  age  (he  was  thirty-four  at  the 
time  of  trial),  he  had  followed  the  ocean;  had  been  sunstruck  in  the 
tropics;  had  suffered  with  brain  fever,  and  had  been  struck  upon 
the  head  with  an  iron  weapon  by  the  mate  of  a  vessel  and  made 
unconscious.  Testimony  of  other  witnesses  showed  his  conduct 
after  his  imprisonment  was  strange  and  unaccountable;  that  he 
seemed  sane,  regretted  his  act,  and  broke  out  into  wild  and  inco- 
herent outcries  and  moanings  and  wringing  his  hands,  and  weep- 
ing. 

The  defense  then  introduced  the  testimony  of  five  or  six  of  the 
best  medical  men  in  the  city,  whose  testimony  was  positive  and 
uncontradicted,  that  emotional  insanity  or  an  insane  impulse  would 
be,  under  all  the  circumstances  of  this  case,  a  very  probable 
explanation  of  the  act;  that  insanity  was  a  disease  that  such  acts  of 
violence  were  more  apt  to  manifest  themselves  against  one  beloved 
than  against  a  stranger;  that  if  the  prisoner,  with  all  his  previous 
tendencies  to  insanity,  and  injuries  which  he  had  suffered,  loving 
his  mistress  intensely,  promised  time  and  again  marriage  by  her, 


270  MODERN  JURY  TRIALS. 

was  suddenly  refused  consummation  of  his  wishes  in  this  respect, 
and  bidden  to  leave  her  forever,  under  the  circumstances  as 
detailed,  that  there  was  a  strong  probability  that  it  would  produce  in 
his  mind  a  state  of  mania,  or  sudden  insane  impulse,  during  th« 
continuance  of  which  the  prisoner  would  be  utterly  unalle  to  distin- 
guish between  right  and  wrong,  or  to  be  even  conscious  of  what  he 
was  doing  •  although  immediately  before  and  immediately  after  the 
commission  of  the  act  the  mind  would  resume  its  normal  condition, 
and  the  power  of  distinguishing  between  right  and  wrong  again 
dominate  it. 

The  medical  witnesses — Drs.  William  Brodie,  Morse  Stewart,  D. 
O.  Farrand,  Hamilton  E.  Smith  and  A.  E.  Yemans — were  among 
the  most  prominent  medical  men  in  the  State. 

The  testimony  all  tended  to  show  that  an  insane  impulse,  or  delu- 
sion, would  sometimes  mansifest  itself  in  acts  of  violence,  and 
against  a  loved  object  oftener  than  one  disliked;  that  jealousy  was 
insanity  in  a  lesser  degree,  and  an  insane  impulse  more  probable 
with  a  person  with  a  weak  than  with  a  strong  mind. 

The  main  hypothetical  question  which  was  put  to  each  of  the 
medical  witnesses,  which  embraced  the  main  points  in  the  case,  was 
as  follows: 

"Suppose  a  person  thirty -one  years  old,  a  sailor  half  his  life; 
when  a  child  having  fallen  upon  his  head  and  injured,  once  struck 
town  unconscious  by  an  iron  weapon;  suffering  sunstroke  twice  so 
that  he  was  unconscious;  having  been  prostrated  for  weeks  by  an 
attack  of  brain  fever  which  rendered  him  unconscious;  that  he  was 
peculiar  in  his  manner,  voracious  in  appetite,  incoherent  in  conver- 
sation, often  stopping  in  the  midst  of  it  to  sing  a  soiig,  or  laugh 
violently;  supposing  such  a  man  deeply  enamored  of  a  girl,  giving 
to  her  all  his  earnings  for  four  months,  she  constantly  promising 
marriage  and  as  constantly  breaking  her  promise;  if,  upon  the  night 
of  her  death,  he  was  with  her  for  thirty  minutes  immediately  pre- 
vious, when  she  reproached  him  for  his  shabbiness,  showed  him  a 
picture  of  another  man,  told  him  she  was  going  to  live  with  this 
man,  and  peremptorily  ordered  him  to  break  off  his  intimacy  with 
her  forever;  suppose  he  was  always  in  the  habit  of  carrying  a 
sailor's  knife  with  him  about  hig  belt,  and  he  then  stabbed  her  to 
her  death,  what,  if  all  these  facts  were  true,  was  the  strong  proba- 
bility; was  he,  when  he  struck  that  blow,  in  such  a  condition  men- 
tally; would  such  a  man  be  affected  to  such  a  degree  that  he  would 
be  ac  ing  under  an  insane  impulse,  and  not  conscious  of  what  he  wai 
doing?" 


TRIAL  OF  UNDERWOOD.  271 

Each  of  the  medical  witnesses  answered  the  question  in  the 
affirmative. 

Q.  Where  do  you  draw  the  line  between  what  you  call  an  insane 
impulse,  and  the  act  of  a  sane  man  who  is  jealous  ? 

A.  At  the  point  where  insanity  is  the  result  of  positive  disease. 
There  may  be  a  condition  which  presents  that  of  entire  health,  yet 
occasionally  the  developments  of  insanity  occur.  These  are  cases 
of  emotional  insanity. 

Q.  Is  there  any  difference  in  the  susceptibility  of  a  person  who 
is  in  a  normal  mental  condition  to  this  "  insane  impulse,"  and  one 
whose  condition  has  been  previously  abnormal,  diseased  in  mind  or 
body,  and  if  so,  which  is  most  susceptible  ? 

A.  The  latter,  of  course. 

Q.  Are  not  love  and  jealousy  exciting  causes  of  insanity  ? 

A.  Yes,  sir. 

Q.  Does  not  jealousy  shade  off  into  "  insane  impulse "  if  it  is 
strong  enough  ? 

A.  Yes,  sir,  it  is  very  common. 

Q.  You  speak  of  jealousy  as  a  cause  of  insanity;  where  do  you 
place  the  dividing  line  between  jealousy  as  a  cause  and  jealousy  as 
the  "  insane  impulse  "  itself  ? 

A.  If  a  man  dwells  on  it,  and  thinks  of  it,  it  becomes  mental 
disturbance. 

Q.  You  mean,  in  the  beginning  it  was  a  cause,  but,  by  brooding 
over  it,  it  leads  to  an  "  insane  impulse  "  as  a  result?  " 

A.  Yes,  sir. 

Q.  What  would  be  the  probability  of  premeditation  of  an  act 
committed  under  "  insane  impulse  ?  " 

A.  Non-premeditation  is  one  of  the  indicia  of  "  insane  impulse." 

Q.  How  as  to  conduct  after  the  act,  bemoaning  it  and  attempt- 
ing suicide  ? 

A.  That  would  be  another  evidence  of  "  insane  impulse,"  bemoan- 
ing it,  wishing  it  undone.  The  books  recognize  this. 

Q.  Does  not  insanity  or  "insane  impulse"  develop  itself  in 
kleptomania  sometimes,  or  in  house-burning? 

A.  Yes,  sir. 

The  jury  failed  to  agree,  standing  five  for  conviction  and  seven 
for  acquittal. 

A  second  trial  took  place  the  November  term,  1874. 

Upon  this  trial  Alfred  Russell  was  added  to  the  counsel  for  the 
State  and  J.  Logan  Chipman  assisted  the  defense.  The  testimony 
was  substantially  the  same. 


272  MODERN  JURY  TRIALS. 

Extracts  from  the  argument  of  HENBY  M.  CHEEVEB,  for  the 
prisoner: 

The  subject  of  insanity  has  occupied  the  attention,  challenged 
the  investigation  oi  many  men,  eminent  in  their  profession,  in 
alm.st  every  land.  In  all  its  manifestations  of  mania,  monomania, 
insane  impulse  and  emotional  insanity,  it  has  received  careful 
attention,  with  a  view  to  determine  its  nature  and  its  cause.  These 
various  forms  of  insanity  mean  one  thing.  They  mean,  for  a  time 
at  least,  that  the  mental  powers  are, 

"  Like  sweet  bells  jangled,  out  of  tune." 

Whether  love,  hatred,  jealousy,  or  whatever  it  be  that  comes  to 
destroy  the  God-like  part  of  man,  the  result  is  the  same.  My 
learned  brother,  the  public  prosecutor,  fears  this  discussion,  and  its 
effects  upon  the  moral  responsibility  of  the  prisoner.  He  tells  you 
"  there  was  a  time  when  murder  was  murder,"  and  goes  to  the  Gar- 
den of  Eden  for  his  example.  Would  to  God  he  would  carry  us 
all  back  to  that  Garden  of  Eden,  from  other  places  than  this  court 
room,  from  pain,  bereavement,  agony,  disappointment,  hatred, 
death.  I  wish  he  could  eradicate  from  men's  minds  the  memory 
of  all  that  has  been,  and  surround  them  with  all  that  is  pure  and 
noble  and  good.  But  he  need  not  have  gone  back  to  the  garden 
for  his  example.  In  the  days  of  the  Salem  witchcraft,  of  the  fag- 
got and  the  stake,  "  murder  was  murder,"  and  men,  and  women  too, 
were  burned,  whether  the  act  for  which  they  suffered  was  the 
result  of  clear  mental  deliberation  or  involuntary. 

Murder  was  not  only  murder  then,  but  insanity  was  a  crime,  not 
a  disease.  It  was  an  evil  spirit.  In  that  day  theologians  gave  us 
the  definition,  and  we  believed  it;  then  the  world  became  a  little 
wiser,  and  metaphysicians  took  it  up.  They  called  it  a  lack  of 
intellect.  But  now  we  know  that  it  is  a  disease. 

How  did  they  test  insanity  in  other  days  !  Not  by  looking  at 
the  act  committed,  but  the  individual  himself  who  committed  it. 
Then,  looking  within  themselves,  the  metaphysicians  said  because 
we  would  have  known  the  act  was  wrong,  and  could  have  resisted 
the  inclination  to  do  it;  therefore,  he  who  did  it  must  have  known 
it  was  wrong,  and  could  have  resisted  it.  Therefore  it  was  a  crime. 
But  now  we  know  it  is  a  disease  of  the  brain  which  affects  the  mind, 
simply  because  the  brain  is  the  mind's  workshop.  If  it  is  a  disease, 
then  we  cannot  hold  a  man  responsible  for  his  acts  committed 
while  under  its  influence;  unless  you  hold  him  equally  responsible 
for  his  ravings  during  the  delirium  of  a  fever.  Insanity  affects  the 
mind  and  produces  action  very  much  as  invomntary  action  of  the 


TRIAL  OF  UNDERWOOD.  273 

body  IB  produced.  Do  you  blame  the  somnambulist  ?  Do  you 
blame  a  somnambulist  for  committing  that  in  his  sleep  which,  in 
his  waking  moments,  would  be  a  crime  ?  No.  Should  you,  then, 
blame  him  when  he  commits  an  act  (which,  in  his  conscious 
moments,  would  be  a  crime)  not  in  his  sleep,  as  we  view  sleep, 
but  when  his  mind  is  just  as  surely  unrestrained  by  will  as  is  the 
mind  of  the  sleeper? 

Insanity,  then,  is  a  disease,  to  be  judged,  not  by  your  conduct, 
nor  by  theological  definitions,  nor  metaphysical  distinctions,  but  to 
be  judged  solely  by  the  mental  condition  of  the  person  himself,  in 
connection  with  the  deed.  *  *  * 

There  is  a  wide  penumbra  between  the  bright  sunlight  of  reason 
and  the  dark  eclipse  of  insanity,  within  whose  shadow  walk  more 
men  than  you  or  I  know.  Have  you  ever  stood  with  a  friend,  on 
some  lofty  pinnacle  of  some  majestic  temple,  or  upon  some  bold 
rock  that  overhung  the  precipice,  and  standing  thus,  has  the 
thought  ever  flashed  through  your  mind  how  the  slightest  touch 
would  send  your  friend  to  eternity  ?  Have  you  ever  thought  when 
in  such  a  position,  "  What  if  I  should  throw  him  over  ?" 

Have  you  never  held  in  your  hand  a  deadly  weapon,  surrounded 
by  your  loved  ones,  and  had  the  unwelcome  thought  force  itself 
into  your  mind  that,  on  the  impulse  of  your  will  hung  life  or 
death  to  them  ?  Have  you  ever,  in  the  stillness  of  midnight, 
watching  by  the  bedside  of  a  loved  one  whose  feet  had  well  nigh 
entered  the  dark  valley,  whose  mind  was  delirious  with  fever, 
whose  body  helpless  with  disease — have  you  ever  thought,  as  to 
you  fell  the  lot  to  administer  the  healing  draught,  some  deadly 
potion  it  may  be,  in  excess;  but,  given  for  healing,  drop  by  drop, 
as  you  measured  out  that  potion  when  no  eye  saw  you  but  the  eye 
above,  have  you  over  thought:  "What  if  I  should  give  a  few 
drops  more  ?"  and  has  the  thought  well  nigh  paralyzed  the  hand  ? 

Ah!  that  "  What  if  I  should  ?"  was  the  first  symptom  of  dethroned 
reason,  which,  in  the  prisoner,  became  the  "  I  will "  of  insanity. 
You  stood  nearer  to  that  dark  land  than  you  knew.  You  had 
entered  that  penumbra;  thank  God,  he  held  you  back.  *  *  It  is 
just  because,  upon  the  one  side  of  this  belt  or  border  land,  that 
shades  from  sanity  into  insanity,  you  will  find  much  sin  and  a  little 
insanity;  while  upon  the  other  you  will  find  much  insanity  and  a 
little  sin,  that  it  is  difficult  for  you  to  say  whether  this  poor  man 
walked  within  that  shadow  totally  or  not.  If,  in  your  minds,  he 
was  within  the  shadow,  even  by  the  slightest  step,  you  must 
acquit.  You  need  not  wait  until  you  lose  him  in  the  darkness,  you 

need   not  wait  until  he    passes  through   that  penumbra  into  the 

IS 


274  MODERN  JURY  TRIALS. 

blackness  and  darkness  of  total  eclipse.  If  you  doubt  even  wher« 
his  steps  were,  acquit  him.  Acquit  with  a  mute  thanksgiving  to 
Heaven  that  you  are  passing  upon  his  case,  rather  than  that  he  is 
passing  upon  yours.  *  *  *  Perhaps,  after  all,  it  is  but  a 
question  of  majority.  * 

Now  law  is  perfect,  because  it  is  universal  in  its  application. 

But  laws  are  imperfect  for  the  same  reason.  The  law  of  gravi- 
tation, as  law,  is  perfect,  because  every  atom  in  the  universe  is 
subject  to  it.  Laws  against  crime  are  imperfect  in  operation, 
because  every  man  is  not  like  his  fellow,  not  of  equal  strength  of 
mind,  nor  able  to  control  himself,  as  another  might  under  passion 
or  violent  impulse.  Therefore,  you  cannot  reason  upon  a  general 
basis.  You  cannot  reason  from  your  own  consciousness.  You  can- 
not reason  upon  any  hypothesis;  but  you  must  go  back  to  the  act, 
discover  under  what  circumstances  it  took  place,  where,  when,  how 
committed,  the  condition  of  the  actor.  That  is  the  test.  Two 
men  commit  the  same  act;  the  one  is  a  criminal,  the  other  is  not. 
*  *  *  *  Our  natures  are  so  in  harmony  with  the  outer 
world,  whether  our  moral  or  physical  nature,  that  it  is  only  so  far 
as  they  act  in  harmony  with  and  receive  impressions  through  the 
outer  world  that  we  are  responsible  to  law,  either  human  or  divine. 
The  moment  we  lose  the  power  of  discerning  between  right  and 
wrong,  and  of  recognizing  the  consequences  of  action,  that  moment 
we  cease  to  be  responsible  before  the  law. 

********** 

A  person  may  often  reason  more  satisfactorily  when  aided  by 
illustration  than  in  the  abstract.  Suppose  everything  had  tran- 
spired that  did  in  this  man's  life,  up  to  the  moment  Charlotte 
Pridgeon  met  her  death;  his  early  life,  injuries,  disease,  hardships, 
strange  conduct,  feeble  intellect,  love,  jealousy;  and  that,  goaded  by 
her  command  to  leave  her,  instead  of  plunging  that  knife  to  her 
breast,  he  had  driven  it  to  his  own  heart;  had  died,  and  you  were 
sitting  as  a  jury  to  determine  the  cause  of  that  death,  would  you 
hesitate  one  moment  over  the  verdict — "  Dead,  by  his  own  hands, 
while  laboring  under  temporary  insanity  !" 

What  is  the  meaning  of  this?  Simply,  that  yon  reason  back  to 
the  intent  and  motive,  and  not  forward  to  the  result. 

He  loved  her.  He  loved  his  own  life.  Both  loves  are  human. 
Would  he  have  raised  his  hand  against  either,  unless  that  hand 
played  traitor,  and  rebelled  against  his  head  past  all  restraint? 
******** 

Who  saw  this  deed  done  ?  No  other  human  being,  save  she  who 
now  lies  in  the  narrow  house,  food  for  the  worms.  She  knew  why, 


TRIAL  OF  UNDERWOOD.  275 

when,  and  how  that  blow  was  struck;  but  she  passed  away  before 
her  life  blood  was  dry  that  had  crimsoned  his  hands;  yet  did  she 
charge  him  with  murder  ?  No.  Staggering  into  that  house  in  her 
mortal  agony,  and  with  her  mortal  wound  upon  her,  she  said,  "  I 
am  dying;  some  man  has  struck  me."  Those  words  strike  you 
with  peculiar  emphasis;  why  did  she  not  charge  him  with  her 
murder?  Simply  because 

"  In  that  dread  moment,  when  her  frantic  soul 
Raved  round  the  walls  of  its  clay  tenement," 

seeking  for  escape,  she  knew  she  had  put  that  upon  him  which  had 
stolen  his  reason,  and  that  he  was  not  guilty  of  her  death. 

Charlotte  Pridgeon,  dying,  did  not  accuse  the  prisoner  of  her 
murder.  Dare  you  do  more  ?  She  knew  that  during  their  short 
life  together  he  had  been  so  kind,  loving,  generous,  patient,  for- 
giving, that  in  her  dying  moments  these  things  pleaded  "  trumpet- 
tongued  against  the  deep  damnation  "  of  such  an  accusation.  *  * 
These  physicians  tell  us  that  love  turned  to  jealousy  produces 
insanity.  This  is  true.  It  is  not  only  the  testimony  of  these 
medical  men,  but  it  is  experience  that  tells  you  this.  That  prince 
of  writers,  of  philosophers,  metaphysicians,  gives  us  the  key  to 
this  when,  asking  the  cause  of  Hamlet's  madness,  Ophelia  tells 
her  father,  Polonius,  of  his  strange  actions.  It  seems  as  though 
the  words  were  written  for  this  very  case. 

Polonius  says — 

"This  is  the  very  ecstacy  of  love, 

Whose  violent  property,  foredoes  itself, 
And  leads  the  will  to  desperate  undertakings, 
As  oft  as  any  passion  under  Heaven 

That  does  affect  our  natures.     I  am  sorry 

What  1  have  you  given  him  any  hard  words  of  late  f 

And  then  she  replies — 

"No,  my  good  lord,  but  as  you  did  command, 
I  did  repel  his  letters,  and  denied 
His  access  to  me." 

And  Polonius  rejoins — 

"That  hath  made  him  mad." 

Did  Charlotte  Pridgeon  repel  his  tenderness  and  deny  his  access 
to  her  that  fatal  night  ?  Did  she  lead  him,  from  the  beginning  to 
the  end  of  their  acquaintance,  a  life  of  hope  deferred,  of  love 
repelled,  of  devotion  trodden  under  foot  ?  Did  she  not  taunt  him 
to  distraction?  She  stripped  him  of  his  earnings,  of  all  means  of 
making  himself  decent  in  appearance;  yes,  stripped  him  of  his 


276  MODERN  JURY  TRIALS 

intellect  itself.  And  yet  they  will  tell  you  he  was  in  his  right 
mind  !  *  *  *  He  tells  you  that  when  she  bid  him  leave 
her  forever,  "It  was  all  black  and  dark  before  my  eyes,  and  I 
knew  not  what  I  did.** 

Did  he  love  her?  Close  by  that  murderous  knife,  in  its  sheath, 
hung  that  pouch  about  his  person.  In  that  pouch  was  her  picture. 

That  picture  and  that  knife  met  together.  They  kissed  each 
other,  when  the  knife  was  warm  with  her  life  blood.  (Blood  was 
found  upon  the  picture  from  its  contact  with  the  knife.) 

And  here  is  a  poor  little  tattered  scrap  of  newspaper  that  was  in 
pouch  that  —  a  woman's  pattern  —  carrying  it  for  her.  That  speaks 
for  itself  !  Poor,  childlike  Underwood,  carrying  it  for  her.  And 
here  are  the  three  letters  she  had  written  him;  letters  telling  him 
to  leave  her;  letters  threatening  a  separation.  And  yet  he  treas- 
ured them,  almost  hugging  them  to  his  breast,  always,  everywhere, 
believing  in  her  even  up  to  that  last  mament  when  that  darkness 
settled  down  upon  him.  And  here  is  one  of  them,  one  of  those 
that  seemed  to  grapple  him  to  her  with  hooks  of  steel: 


"*  *  *  I  am  lonely.  I  want  to  see  you;  but  never  mind,  dear,  I  shall 
soon  ace  you,  and  for  good,  I  think  of  you  always.  *  *  *  You  must 
not  get  discouraged. 

"  Ever  yours, 

"LOTTIE." 

[Ah  !     She  knew  he  was  discouraged,  did  she  ?J 
"  A  kiss,  and  then  good-night" 

Now,  with  these  letters  from  her  in  his  mind  and  on  his  person, 
burning  to  see  and  embrace  her,  with  this  picture  there,  this  man 
met  her  on  her  return,  and  she  met  him  —  not  with  love  or  affection, 
but  with  taunts  and  sneers,  and  proof  of  infidelity  during  her 
absence,  and  his  love  curdled  into  jealousy,  became  mania,  and  he 
took  the  life  that  was  to  be  no  longer  his. 

You  have  nothing  more  to  do  with  her.  I  have  nothing  more  to 
do  with  her.  I  have  purposely  kept  her  in  the  background  during 
this  trial.  She  has  come  into  this  case  far  enough  to  drao1  a  fellow 

O  O 

being  to  the  verge  of  insanity  and  death.  Your  verdict  cannot 
restore  her  to  life.  John  Randolph  once  said  that  in  all  the  voca- 
bulary there  was  no  word  like  "remorse."  Remorse  is  the  mildew 
that  gathers  upon  actions  irretrievable,  and  gnaws  the  human  life 
away.  Remorse  to-day,  remorse  yesterday,  remorse  to-morrow, 
remorse  every  day,  till  the  grave  receives  him  !  He  may  live,  he 
may  know  what  he  is  doing.  He  may  take  up  the  duties  of  an  every- 


TKIAL  OF  VANDERPOOL.  277 

day  life  and  discharge  them  with  a  mechanical  faithfulness;  but  he 
can  no  more  enter  into  life  than  though  he  lay,  as  she  lies,  eaten  of 
the  worms. 

Your  verdict  may  acquit  him,  but  it  cannot  save  him. 

The  jury  acquitted  him,  on  the  ground  of  insanity.  Under  a  statute  of  the 
State  he  was  sent  to  the  insane  hospital  in  the  State  prison  at  Jackson,  where, 
by  the  provisions  of  the  law,  he  was  required  to  be  detained  until  an  examina- 
tion as  to  the  question  of  sanity  could  be  made  by  the  judge  of  the  court  who 
tried  the  case  and  the  superintendent  of  the  asylum.  Underwood's  counsel 
carried  the  matter  to  the  Supreme  Court  by  writ  of  error,  claiming  that  such 
committal  was  void,  because  the  act  was  unconstitutional,  in  that  it  imposed 
duties  judicial  in  their  character  upon  the  superintendent  of  the  asylum  to  be 
exercised  by  him  at  his  own  volition.  This  judicial  power,  it  was  insisted, 
the  constitution  vested  in  the  court  only.  It  was  claimed  that  this  was,  prac- 
tically, imprisonment  for  an  indefinite  period,  and  might  be  for  life.  It  was 
also  claimed  that  it  was  not  a  proper  exercise  of  the  police  powers  of  the 
State,  in  that  it  was  an  imprisonment,  not  to  prevent  a  criminal  act,  but  as  a 
punishment  for  one  already  performed.  After  a  full  argument,  the  Supreme 
Court  held  the  law  unconstitutional.  Underwood  was  released  from  custody, 
and  returned  to  England. 


THE    TKIAL    OF   YANDEKPOOL. 

first  trial,  at  Manisiee,  Michigan,  January,  1870. 

Herbert  Field  and  George  Vanderpool,  partners  in  a  bank  at 
Manistee,  went  into  their  office  about  noon,  on  September  5,  1869, 
and  Field  was  then  seen  alive  for  the  last  time.  They  were  last 
engaged  in  settling  their  business  affairs,  and  apparently  friendly. 
Both  men  were  prominent  citizens  of  a  thriving  frontier  town, 
both  well  known  and  generally  esteemed.  Field's  sudden  disap- 
pearance, without  any  known  reason,  aroused  suspicion  of  foul 
play,  and  within  two  weeks  his  dead  body  was  found  on  the  lake 
shore,  about  a  score  of  miles  from  Manistee,  with  the  skull  crushed 
by  a  murderous  blow  and  a  rope  around  his  waist  that  had  been 
tied  to  some  weight  and  sunk  in  deep  water.  Vanderpool  had 
already  been  arrested,  and  the  discovery  was  followed  by  a  blaze  of 
excitement  throughout  the  entire  State. 

A  most  formidable  mass  of  circumstantial  evidence  was  collected 
against  the  prisoner,  and  the  winter  following  the  tragedy  he  was 
tried  on  a  charge  of  murder  in  the  first  degree.  The  progress  of 


278  MODERN  JURY  TRIAL& 

the  trial  was  watched  with  intense  interest.  The  list  of  witnesses 
included  the  most  prominent  men  in  that  region.  The  evidence 
covered  a  long  line  of  circumstances,  the  current  of  the  river,  the 
condition  of  the  bank,  the  variation  of  clocks,  the  condition  of 
patients  under  certain  diseases,  the  acts  of  the  prisoner — the  case 
being  based  wholly  on  circumstantial  evidence.  The  trial  lasted 
nearly  two  months,  and  resulted  in  conviction  and  sentence  to  soli- 
tary confinement  in  Jackson  prison  during  life. 

This  termination  of  the  trial  resulted  in  wide-spread  conviction 
that  the  feeling  at  Manistee  was  so  intense  that  the  prisoner  did 
not  have  an  impartial  trial.  Money  was  rapidly  collected  in  all 
parts  of  the  State  to  meet  the  expenses  of  a  new  trial.  Eminent 
counsel  were  retained,  John  Van  Arman  and  D.  Darwin  Hughes, 
who  secured  a  new  trial  and  a  change  of  venue  to  Kalamazoo  Cir- 
cuit. A  prominent  advocate,  G.  V.  N.  Lothrop,  of  Detroit,  and 
Attorney-General  May  of  the  State  appeared  for  the  prosecution. 
Mr.  Lothrop,  of  Detroit,  had  twice  been  nominated  for  the  Supreme 
bench  of  Michigan,  was  a  counsel  of  rare  eloquence  in  jury  trials. 
This  trial  was  a  battle  of  giants  that  acquired  great  celebrity  in  the 
entire  Northwest,  and  resulted  as  will  be  later  shown,  in  its  order. 

It  is  claimed  by  the  prosecution  that  shortly  before  the  dismissal 
of  the  churches,  on  the  Sabbath  morning  in  question,  George  Van- 
derpool  murdered  Herbert  Field  in  the  bank.  Together  the  two 
men  went  from  the  bank  into  the  adjoining  shoe  store,  after  eleven 
clock,  and  procured  witnesses  of  the  instrument  which  they  said 
embodied  the  dissolution  of  their  partnership  and  the  settlement  of 
their  affairs.  Together  they  returned  to  the  bank,  and  the  theory 
of  the  prosecution  is,  that  a  few  minutes  afterward,  as  Field  was 
sitting  in  front  of  the  desk,  marked  upon  the  diagram,  engaged  in 
writing  letters,  Vanderpool  came  up  stealthily  behind  him  with 
some  blunt  instrument  in  his  hands,  perhaps  a  hatchet,  and  struck 
him  in  rapid  succession  two  dreadful  blows  upon  the  back  of  the 
head;  that  Field  at  first  convulsively  sprang  up  or  attempted  to 
rise;  that  Vanderpool  grasped  him  by  the  arm  and  dealt  him  the 
second  stroke,  when  Field  became  utterly  senseless;  that  the  blood 
stained  everything  in  its  immediate  vicinity;  that  the  body  must 
have  been  laid  upon  the  floor,  thus  farther  staining  the  carpet;  that 
it  lay  there  during  all  that  afternoon  and  evening,  until  about  nine 
o'clock,  when  Vanderpool,  having  spent  the  intervening  time  with 
his  wife  and  friends,  with  every  appearance  of  cheerfulness,  entered 
the  bank,  changed  his  black  clothing  for  some  of  Field's,  stored  in 
the  bank,  lifted  up  the  dead  man,  carried  him  into  the  street, 
descended,  with  the  body,  the  long  staircase  to  the  landing, 


TRIAL  OF  VANDERPOOL.  279 

attached  to  it  a  rope  and  weight,  launched  it  into  the  river,  in  a 
row  boat  towed  it  down  the  stream  to  near  the  entrance  into  the 
lake,  there  sank  it,  returned  to  the  bank,  again  changed  his  cloth- 
ing, which  could  then  be  hardly  otherwise  than  stained  with  blood, 
and  proceeded  first  to  a  physician's  and  then  to  his  home,  where  his 
wife  swears  he  slept  throughout  the  night,  peacefully  so  far  as  she 
was  able  to  perceive.  To  support  this  theory  is  a  mass  of  circum- 
stantial evidence,  which  will  appear  during  the  trial,  and  which  it 
is  not  necessary  to  dwell  upon  now.  Of  course  if  it  could  be  shown 
that  Field  was  seen  alive  after  noon  of  September  5,  1869,  the 
theory  of  the  prosecution  fails,  and  this  was  the  point  against  which 
Mr.  Vanderpool's  counsel  directed  their  assaults. 

Herbert  Field  is  supposed  to  have  been  a  little  over  twenty-one 
years  of  age  when  he  met  his  death,  having  been  born  in  1848,  at 
Lewiston,  Maine.  His  father's  name  was  Stephen  Field.  Herbert 
seems  from  early  youth  to  have  been  of  a  restless,  active  disposi- 
tion, prone  to  change,  and  while  a  mere  lad  met  with  several  acci- 
dents, the  results  of  youthful  rashness,  which  put  his  life  in 
jeopardy.  At  thirteen  he  left  his  home  and  roved  about,  visiting 
Washington,  Richmond,  and  other  cities  of  the  South.  He  afterwards 
shipped  as  a  sailor  on  a  Government  transport  carrying  supplies  to 
the  Union  army  at  New  Orleans.  In  1863,  when  but  fifteen,  he 
sailed  from  Boston  in  the  ship  JohnTueker,  bound  for  a  South  Ameri- 
can and  European  voyage.  In  her  he  made  a  tempestuous  passage 
round  Cape  Horn,  the  crew  undergoing  great  privations.  He  then 
enlisted  on  the  United  States  ship  Lancaster,  where  he  remained  some 
nine  months.  Afterwards,  in  an  English  barque,  he  sailed  to  Liver- 
pool, thence  to  Russia,  and  was  shipwrecked  near  Riga,  losing  all  his 
clothing  and  a  large  amount  of  money  in  gold.  In  the  autumn  of 
1865  he  returned  to  Boston,  and  seemed  to  have  given  up  his  wan- 
dering habits  and  to  be  desirous  of  engaging  in  settled  pursuits. 
He  went  through  a  course  of  study  at  the  Commercial  College  at 
Auburn,  went  to  New  York  in  search  of  a  situation,  and  finding 
none,  made  a  voyage  to  the  Caribbean  seas  again,  as  a  sailor.  Soon 
after  his  return  he  visited  Lewiston  again,  and  Miss  Hill,  whose 
name  has  often  been  heard  in  connection  with  the  investigation 
of  his  murder,  proposed  to  educate  him,  and  he  commenced  studies 
at  a  literary  institution,  which,  however,  was  soon  necessarily 
abandoned,  in  consequence  of  his  health  failing  under  confinement. 
Both  he  and  Miss  Hill  then  removed  to  Manistee,  and  in  Decem- 
ber, 1868,  Vanderpool,  who  is  supposed  to  have  first  met  Field  in 
Chicago,  also  arrived  there,  a  co-partnership  was  formed,  and  the 
banking  business  was  inaugurated  under  the  firm  name  of  "  Van« 


280  MODERN  JURY  TRIALS. 

derpool  <fc  Field,"  Miss  Hill  furnishing  Field  the  money  which  he 
invested,  to  the  amount  of  some  $7,000.  He  was  a  young  man  of 
very  frank,  engaging  manners,  and  soon  won  the  friendship  of  the 
entire  town,  being  universally  liked,  though  Vanderpool  was  gen- 
erally regarded  as  the  better  business  man  of  the  two.  Field  was 
quite  talkative,  even  concerning  business  affairs,  displayed  money 
in  his  possession  constantly,  and  was  probably  looked  upon  by  the 
people  of  Manistee  as  somewhat  young,  thoughtless  and  inexperi- 
enced. 

I  understand  that  George  Vanderpool's  early  life  was  spent  in 
Central  New  York;  that  he  lost  his  father  while  quite  young,  but 
has  a  mother  and  brother  living.  He  came  to  Michigan  when  a 
young  man,  was  employed  in  several  capacities  in  the  lumbering 
trade  at  Muskegon,  and  acquired  great  skill  in  "  running  logs." 
He  was  in  the  army  for  a  long  time,  and  afterwards  employed  in 
several  lines  of  trade  in  Muskegon.  Shortly  before  going  to  Man- 
istee he  married  his  wife  in  Central  New  York.  Until  the  charge 

o 

of  killing  Herbert  Field  was  preferred  against  him,  his  general 
reputation  appears  to  have  been  good  for  honesty,  sobriety,  ambi- 
tion to  progress  in  business.  It  is  supposed  that  when  he 
entered  into  co-partnership  with  Field  he  possessed  about  $2,500  in 
money,  a  large  part  of  which,  however,  he  had  borrowed  to  enable 
him  to  engage  in  business. 

The  theory  of  the  defense  was  an  alibi,  and  lack  of  certainty  in 
The  People's  testimony — no  motive  to  kill  Field,  no  time,  that 
Field  was  alive  and  well  when  Vanderpool  left  him. 

Messrs.  THOMAS  B.  CHITECH,  B.  M.  CUTCHEOX  and  GEO.  W. 
BUIXIS  appeared  for  The  People,  and  S.  W.  FOWLEB,  E.  E.  BEXZ- 
DICT  and  T.  J.  RAMSDELL  for  the  defense. 

The  trial  lasted  three  weeks.  Experts  from  Ann  Arbor  testified 
as  to  the  blood.  The  whole  State  and  the  Northwest  took  a  deep 
interest  in  the  incidents  of  the  trial  and  tragedy.  Men  and  women 
packed  the  court-room  daily;  newspapers  heralded  every  word  of 
evidence  or  point  of  counsel.  The  evidence  was  romantic.  The 
prisoner's  statement  was  over  three  hours  long,  and  a  full,  complete 
and  careful  detail  of  all  he  did  on  the  fatal  Sunday  delivered  in  a 
graphic  and  persuasive  manner.  On  this  was  built  the  theory  of 
his  defense.  He  admitted  taking  up  the  carpet  and  burning  part; 
said  it  was  filthy  ani  worn — stained;  that  he  had  the  nose  bleed, 
and  Field  cut  his  finger  in  a  scuffle;  that  he  was  sick  and  changed 


TRIAL  OF  VANDERPOOL.  281 

clothes  in  consequence;  that  they  settled,  and  Field  left  at  mid-day; 
that  he  was  innocent;  that  he  feared  lynching  when  he  made  the 
"  pin  letter  "  as  a  ruse. 

Very  many  witnesses  were  examined;  some  on  slight  circum- 
stances, and  more  as  cumulative  evidence.  Counsel  were  untiring 
in  their  zeal  and  acute  in  the  arts  of  reasoning  away  and  account- 
ing for  circumstances.  Gen.  CUTCHEOX'S  argument  was  most 
graphic  and  inspiring  ;  Mr.  CHUKCII'S  the  most  impressive  ;  Mr. 
FOWLEE'S  the  most  pathetic.  But  as  arguments  are  given  still  later 
of  men  even  more  renowned,  that  part  is  at  present  passed  with  a 
brief  quotation  from  Hon.  BYRON  M.  CUTCHEON'S  remarks: 

"  Moral  certainty  is  not  absolute  certainty."  It  is  not  the  exclu- 
sion of  all  doubt.  It  is  that  certainty  that  convinces  and  directs 
the  understanding  and  satisfies  the  reason  and  judgment  of  those 
who  act  conscientiously  upon  it  (People  v.  Webster),  that  leads  us 
to  act  in  the  gravest  concerns  of  life  in  our  own  affairs. 

One  year  ago  Field  had  a  capital  of  $7,000;  Vanderpool  $2,300; 
bankers  on  a  slender  capital.  They  become  dissatisfied.  Field 
commenced  to  draw  out.  Vanderpool  distrusted  him.  He  took 
his  money  home  to  keep  it  nights.  He  changed  the  combination 
lock.  He  claims  Field  as  a  defaulter.  But  two  men  swear  the 
books  were  tampered  with.  Friend  saw  them  Saturday;  Ellis  on 
Monday.  They  were  changed,  $400  to  1400;  $700  to  1700.  Here 
was  the  motive.  He  admitted  the  forgery.  Without  the  for- 
geries, Field  had  a  credit  of  $3,679.38  on  Saturday  night.  The 
greed  of  gain  and  fear  of  ruin  made  the  motive.  It  was  Vander- 
pool. The  opportunity  was  ample.  They  were  alone;  curtain 
down.  The  means  was  the  hatchet.  It  was  marked  with  blood 
and  fitted  the  wound.  Field  was  seen  going  in  and  never  seen  out 
alive  again.  There  were  his  shirt  cuffs,  his  envelopes,  letters,  papers, 
pocket-book,  books  with  forgeries,  and  human  blood  f  Blood  on 
the  floor,  on  the  carpet,  on  papers,  on  stairs;  cracks  of  floor  were 
filled  with  blood;  covered  all  over  with  fresh  ink!  Where  is  the 
carpet?  Burned!  Where  the  clothes?  Burned!  By  whom? 
Vanderpool!  From  the  bank  he  went  with  Field's  clothes  on;  in 
the  bank  was  found  the  bloody  spots;  in  the  bank  the  charred 
remains  of  carpet,  pants  and  vest  and  shirt!  At  the  bank  and  clean- 
ing up  was  Vanderpool  on  Monday  before  the  dawn  was.  From  all 
these  facts  but  one  inference  is  drawn  :  that  Herbert  Field  was 
murdered  in  the  bank,  and  George  Vanderpool  knew  it,  for  he  waa 
there.  He  cleaned  the  blood;  he  cut  the  carpet;  he  scrubbed  the 
floor;  he  burned  the  hay  and  carpet.  The  destruction  of  evidence 
of  a  crime  is  confession  of  crime. 


282  MODERN  JURY  TRIALS. 

They  say  he  was  cheerful!     But 

"  One  may  smile  and  smile  and  be  a  villain." 

We  can  see  him  enter,  change  his  clothes,  lift  the  bloody  form, 
take  it  to  his  boat,  tow  it  down  the  stream  to  the  lake-,  cut  loose, 
and  let  it,  weighted,  fall  to  the  depth  below.  A  little  eddy,  a 
gurgle,  a  ripple,  and  farewell  to  Herbert  Field.  A  grey-haired 
mother  may  wait  long  his  coming  in  the  far-off  sunrise,  bnt  in  vain. 
The  bloody  floor  cries  Murder!  The  bloody  carpet  says  Murder! 
The  bloody  finger  marks  say  Murder! 

The  ink  marks,  carpet,  false  entries,  a  guilty  conscience,  through 
a  guilty  face,  say  Murder!  The  human  hulk  is  drifted  fror  its 
anchorage  ;  wind  and  wave  and  current  fights  the  guilty  man. 
The  hulk  is  stranded  on  the  yellow  sands.  The  hands  all  helpless, 
eyes  once  full  of  life  shall  see  no  more;  the  lips  are  cold  and  dumb; 
the  tongue  is  silent.  But  these  are  talking  all  at  once;  they  speak 
an  awful  language.  They  tell  the  dreadful  deed! 

The  jury  said  guilty,  and  Vanderpool  was  sentenced  to  a  life 
confinement  in  Jackson  prison. 

But  a  new  trial  was  granted,  and  a  change  of  venue  to  Kala- 
mazoo. 


THE  SECOND  TRIAL  OF  YANDERPOOL. 


The  facts  of  the  first  trial  being  familiar,  nothing  new  need  be 
added  to  carry  the  reader  through  this  intensely  interesting 
inquiry.  After  the  conviction  and  excitement  of  the  first  trial,  the 
public  took  sides.  A  change  of  venue  was  had  to  Kalamazoo  cir- 
cuit, where  a  most  exciting  trial  took  place,  lasting  nearly  thirty 
days,  and  resulting  as  will  later  appear  in  this  report.  Experts 
from  Michigan  University  to  analyze  the  blood;  learned  counsel 
from  abroad,  and  the  deep  mystery  of  the  trial,  attracted  vast 
crowds  to  the  court-room  and  made  all  proceedings  intensely  dra- 
matic and  interesting.  It  was  clearly  a  battle  of  giants  from  the 
first.  Hon.  G.  V.  N.  LOTHKOP,  the  leader  of  the  Michigan  bar,  an 
advocate  of  rare  attainments  and  legal  accumen,  appeared  for  The 
People,  with  Attorney-General  MAY;  and  JOHN  VAN  AKMAN,  fof 
the  defense,  assisted  by  D.  DARWIN  HUGHES,  of  Grand  Rapids. 


TRIAL  OF  VANDERPOOL.  283 

Mr.  LOTHROP  is  six  feet  high,  nearly  65  years  of  age,  erect, 
strong,  hair  turning  gray;  short,  closely  trimmed  beard,  with  the 
air  and  dignity  of  a  Senator.  His  commanding  manner,  his  well- 
rcunded  periods,  his  fluency  of  speech  and  excellent  choice  of  lan- 
guage, never  over-reaching  in  his  argument,  give  him  force  and 
elegance  of  expression  and  make  him  a  counsel  of  great  influence 
with  courts  and"  juries. 

Throughout  this  trial  he  bore  himself  with  a  quiet  dignity,  and 
closed  with  an  appeal  most  touching  and  graphic,  that  seemed  to 
lift  the  walls  of  the  building  and  reveal  the  murderer  in  the  midst 
of  his  horrible  crime.  He  never  turns  to  wit  or  lowers  himself  to 
become  personal  or  answer  side  allusions. 

The  argument  of  D.  DARWIN  HTJGHES  for  the  defense,  on  the 
twenty-third  day  of  the  trial,  was  the  most  ingenious  and  artful 
effort  of  all.  With  no  attempt  at  eloquence,  but  a  plain,  candid 
business-like  statement,  enforced  by  an  earnestness  and  dignity  of 
manner  at  once  convincing  and  effective,  he  held  the  attention  of 
the  jury  nearly  two  days  in  various  propositions,  tables  and  illus- 
trations, placing  the  defense  in  its  strongest  light  and  plausibly 
explaining  every  occurrence  that  pointed  to  guilt. 

He  commenced  by  an  exhaustive  review  of  the  testimony,  of  the 
danger  of  circumstantial  evidence — how  it  often  led  to  conviction 
and  punishment  of  the  innocent — how  it  seems  to  surround  one  in 
a  network  of  trouble,  all  of  one  direction,  when  a  single  break 
might  apply  all  facts  to  other  parties  and  leave  the  accused  to 
freedom.  He  doubted  that  the  real  Field's  body  had  been  found! 
He  considered  the  evidence  very  weak  on  identification.  He  went 
over  each  item  of  evidence  in  detail,  as  to  the  burning  of  clothing, 
accident  of  the  spitoon,  spots  of  blood;  paid  a  high  and  just  tribute 
to  the  fidelity  of  the  prisoner's  wife  in  his  deep  distress,  and 
bitterly  denounced  Gen.  May's  attack  on  the  defendant. 

In  this  review,  as  in  all  his  argument,  he  measured  his  sentences 
and  weighed  his  words  with  precision,  and  they  fell  with  weight 
upon  the  jury.  "  I  need  not  tell  you,  gentlemen,"  he  said,  "  that 
the  circumstances  must  not  only  all  be  consistent  with  guilt,  but 
inconsistent  with  innocence,  to  convict  this  defendant  I"  He 
analyzed  the  question  of  blood  on  the  floor  with  great  thorough- 
ness, and  announced,  as  a  proposition,  that  there  was  no  blood 
on  the  floor  of  the  bank,  in  guilty  quantity,  if  at  all.  He  argued, 

1.  That  the  blood  might  come  from  natural  causes — the  teeth, 
the  nose,  the  dog — that  a  few  drops  in  filthy  water  would  greatly 
magnify  its  color;  that  the  doctors  disputed  whether  it  was  blood 


284  MODERN  JURY  TRIALS. 

or  ink — whether  it  was  from  a  fish  or  a  man !  While  from  the 
testimony  of  Dr.  Ellis,  such  a  wound  as  Field  received  would  have 
produced  two  quarts  or  a  gallon  of  blood! 

2.  This  amount  left,  then,  at  twelve  o'clock  Sunday,  until  five  on 
Monday  morning.     Yet  the  floor  was  not  wet,  and  no  blood  had 
then  been  noticed.     Vanderpool  was  sweeping  out  dust  and  blood 
by  the  quart,  unnoticed  by  the  sheriff !     Impossible. 

3.  In  seventeen  hours  it  would  have  run  down  through  into  the 
basement,  while  nothing  of  the  kind  was  discovered. 

4.  No  one  saw  it  when  fresh,  and  only  found  it  by  magnifying 
glasses,  with  nothing  like  stains  on  their  hands  from  any  color. 
They  were  magnifying  a  great  uncertainty! 

5.  All  that  was  seen  on  the  floor,  carpet  and  wall  may  have  been 
the  contents  of  a  spitoon,  and  it  was  wonderful  that  nothing  did 
disclose  human  blood  corpuscles  to  a  certainty. 

6.  If  there  had  been  blood,  Secor  would  have  seen  it. 

7.  It  would  not  have  been  cleaned  in  an  open  manner. 

8.  The  water  would  have  left  traces  on  the  floor. 

9.  The  blood  would  have  stained  the  sidewalk. 

10.  The  cleaning  itself  was  not  suspicious.     It  was  a  new  busi- 
ness.    It  was  a  proper  occasion.     It  needed  cleaning;  it  needed  a 
new  carpet. 

11.  The  time  was  not  unusual;  it  was  early,  but  required  to  be 
early.     Hurd  was  going  to  his  store,  Wilcox  to  his  office.    Visitors 
would  soon  be  coming  in.     It  must  be  done  early  and  not  interfere 
with  business. 

12.  It  was  openly  done,  in  plain  sight,  in  the  usual  way.     The 
carpet  thrown  out  on  the  walk.     Hopkins  was  there  at  six,  Secor 
a  half  hour  later.     The  cutting  of  the  carpet  was  to  take  it  from 
the  safe  and  the  stove.     It  was  unavoidable. 

13.  The  ashes  in  the  stove  disprove  the  blood.     The  prisoner 
owned  he  burned  the  papers  and  clothes.     He  did  not  burn  the 
carpet  until  Wednesday.     The  "bloody  carpet"  in  the  bank  up  to 
that  time  !     Would  not  a  murderer  have  seen  that  the  fire  did  its 
work  more  effectually? 

14.  The  testimony  of  Ramsdell  as  to  the  time  he  left  the  store 
and  rattled  at  the  bank  door  to  get  in,  that  there  were  four  persons 
in  hearing,  had  Vanderpool  attempted  the  deed — not  a  wall,  but  a 
thin  partition  between — he  must  have  selected  a  busy  hour,  high 
twelve,   for   murder!     Do   you   believe,   gentlemen,  that,   having 
murdered  Field,  he  put  on  his  clothing  and  made  no  concealment 
of  the  fact  ?     The  thing  is  improbable.     The  theory  of  the  prose- 
cution makes  him  use  violent  means  to  murder — to  use  it  in  the 


TRIAL  OP  VANDERPOOL.  285 

hearing  of  four  men.     There  was  a  scuffle  in  the  bank,  a  rattle  at 
the  door.     It  all  ceased;  but  all  this  is  explained. 

15.  The  bank  door  was  open  all  that  Sunday  afternoon.     Mrs. 
Scribner  saw  it  open  at  four;  Ford  confirms  her.     He  says  it  was 
half  open  at  that  hour. 

16.  While  a  hatchet  was   in   the   bank,  corresponding   to  the 
wound  on  the  head  of  the  body  found,  there  is  no  evidence  that 
it  was  bloody,  or  showed  any  marks  of  having  been  cleaned;  but 
such  evidence  is  shown  to  be  wholly  wanting.     If  Herbert  Field 
was  killed  in  the  bank,  he  was  killed  by  that  hatchet.     That  is  the 
very  instrument  one  would  select  as  the  one  a  murderer  would  use. 
But  we  have  demonstrated  that  it  could  not  have  been  used  and 
not  show  some  signs  or  marks,  and  I  say  that  circumstance  alone  is 
a  vindication  of  Vanderpool.     They  must  repudiate  the  hatchet  or 
acquit  the  prisoner. 

17.  There  was  no  blood  of  suspicious  quantity  on  the  sidewalk, 
stairs  or  platform  where  the  body  must  have  been  taken  to  reach 
the  river.     And  the  time  allowed  was  too  short.     I  have  drawn  up 
a  table;  I  have  figured  closely  on  the  prisoner's  movements,  as 
shown  by  the  evidence.     He  left  the  house  at  9.30  and  returned  at 
10.55 — eighty-five  minutes  gone  altogether: 

MnniTES. 

Walking  to  the  store 5 

Walking  to  Ellis  House 8 

Walking  to  the  boat 6 

Walking  from  the  boat 6 

From  the  boat  to  the  store 5 

Back  to  the  bank  to  let  in  the  dog 5 

Going  to  the  shop  to  look  in 5 

Going  for  the  medicine 5 

Going  to  Dr.  Fisher's 3 

At  Fisher's 15 

Going  home 5 

Sitting  on  lumber  pile  near  Times  office 5 

Before  starting 5 

71 

This  would  leave  him  fourteen  minutes  to  spare.  It  would  take 
five  minutes  to  reach  the  bank;  five  more  to  go  to  Tyson  House; 
five  more  to  see  that  the  coast  was  clear;  ten  to  get  a  boat  ready; 
five  to  get  the  iron  for  anchor  and  fasten  to  the  body;  five  to  light 
up  and  change  his  clothes;  ten  more  to  get  the  body  to  the  boat; 
five  in  boat;  thirty  to  row  down  the  stream;  five  more  to  care  for 
the  boat  on  his  return;  five  more  to  change  his  clothes;  five  more 
to  go  to  Fisher's;  twenty  that  he  stood  there — 120  minutes  in  all. 


286  MODERN  JURY  TRIALS. 

Thus  he  lacked  thirty  minutes  of  time  enough  to  do  the  deed;  and 
this  is  the  most  probable  story. 

Then  his  appearance  on  Sunday  did  not  indicate  guilt.  In  the 
one  instance  he  must  have  nerve  enough  to  commit  a  crime,  and 
the  next  breath  look  as  if  he  had  the  cholera.  How  would  they 
have  him  look  if  innocent;  how,  if  guilty  ?  Had  he  committed  the 
murder  at  12  o'clock,  he  never  could  have  lived  through  that  after- 
noon out  of  sight  of  the  bank,  and  move  the  traces  of  the  ugly 
crime.  In  the  afternoon,  he  goes  to  meet  his  friends  at  the  boat. 
He  is  talking  with  sheriff  Secor.  Where  was  his  anxiety  to  get 
rid  of  a  body  ?  Of  all  the  weak  theories  the  weakest  is,  how  to 
dispose  of  the  body.  While  at  the  hill,  Mrs.  Vanderpool  says, 
"  there  comes  Field  !"  But  he  was  not  confused.  Put  yourself  in 
his  position.  By  their  theory  he  had  just  murdered  Field.  Do 
you  suppose  that,  if  Vanderpool  had  murdered  Field,  and  the  dog 
saw  him  do  it,  then  the  dog  comes  along;  he  had  been  in  the  bank, 
and  if  Vanderpool  did  it,  he  would  go  to  coax  him  back. 
Would  the  dog  come  for  assistance  to  the  master's  murderer  ?  Yet 
they  say  he  came  and  played  with  Vanderpool. 

He  looked  pale  on  Monday.  Had  he  not  been  pale  all  the  week? 
His  sickness  accounts  for  that.  They  say  he  wrote  the  Brown- 
Nolan  letter.  That  is  against  him,  but  it  is  impossible  to  tell  what 
one  will  do  in  the  face  of  such  public  sentiment.  In  Lord  Coke's 
time  a  man  was  accused  of  the  murder  of  his  niece;  he  had  been 
last  seen  whipping  her.  She  had  said,  "Dear  uncle,  do  not  kill 
me."  He  was  told  if  he  did  not  produce  the  girl,  the  trial  would 
take  place.  He  employed  a  girl  to  personate  the  niece,  but  it  was 
detected;  he  was  convicted  and  hung.  Two  months  later  the  real 
niece  returned  from  a  neighboring  county,  where  she  had  fled  for 
protection  from  her  uncle. 

They  allege  that  he  said  they  would  find  blood  on  the  carpet, 
when  nothing  had  been  said  about  blood.  Durham  says  Conover 
had  pointed  to  the  blood.  He  laughed  when  they  told  him  in  jail 
that  Field's  body  had  been  found,  and  said,  "  You  can't  make  me 
believe  that."  But  his  conduct  was  consistent  throughout.  He 
had  dissolved.  He  went  to  his  bank,  found  it  in  confusion,  and 
he  cleaned  the  bank.  Field  was  a  reckless  bookkeeper  and  no 
manager. 

The  books  showed  $2,000  more  assets  than  liabilities.  He  had  no 
motive  to  kill  Field.  He  had  a  promise  of  capital  from  a  relative. 
They  are  forced  to  say  he  did  the  deed  for  money.  No  money  has 
been  found  except  $100.  This  they  call  stolen  money  !  It  is  not 
identified.  It  belonged  to  Vanderpool  as  much  as  to  Field.  Think- 


TRIAL  OF  VANDERPOOL.  287 

ing  of  necessities — a  run  had  been  made  on  the  bank  and  all  the 
cash  drawn  out — he  put  some  gold  where  his  wife  could  find  it.  If 
he  robbed  Field,  what  became  of  the  money?  Field  was  his 
friend.  Did  he  murder  him  for  money  ?  How  preposterous  ! 

Who  was  the  man  in  the  boat  ?  Here  is  a  mystery.  A  man  in 
white  in  the  boat,  out  on  the  lake.  They  say  Vanderpool.  But 
there  is  abundant  proof  it  was  not  this  defendant.  He  was  not 
dressed  like  him.  The  man  in  the  boat  had  on  light  clothes.  If 
he  changed  for  Field's  clothing,  why  was  it  not  marked  ?  Which 
suit  was  it  ?  Why  not  wet  or  soiled  with  blood  ?  Why  would  he 
whistle  for  his  dog?  Why  would  he  have  remained  in  the  boat 
till  Fralich  approached  within  a  few  feet  of  him,  with  the  dead 
body  in  his  keeping? 

1  have  attempted,  gentlemen,  to  show  that  these  theories  are 
inconsistent  with  gnilt  and  consistent  with  innocence.  Our  theory 
is,  that  George  Vanderpool  did  not  kill  Herbert  Field.  We  have  a 
complete  alibi.  We  admit  they  were  together  on  Sunday  noon  in 
the  bank,  but  say  no  murder  was  committed  there.  They  were 
there  as  friends,  not  to  commit  a  horrible  crime.  Field  was  alive 
after  the  prisoner  left  the  bank.  He  was  seen  by  three  witnesses, 
whom  you  have  heard — Mrs.  Springer,  Charlie  Springer  and  Mrs. 
Lot.  They  cannot  be  mistaken.  All  efforts  corroborate  rather 
than  impeach  them.  The  People  must  establish  their  case  to  a 
moral  certainty,  and  how  preposterous  their  story  is.  You  must 
accept  these  explanations  when  they  are  so  reasonable  and  so  estab- 
lished by  evidence. 

Gentlemen,  I  have  performed  my  duty;  it  remains  for  you  to 
perform  yours. 

Mr.  JOHN  VAN  ABMAN,  of  Chicago,  spoke  for  the  prisoner  in  a 
labored  effort  of  nine  hours,  during  which  he  seemed  intensely  in 
earnest,  and  at  times  quite  severe  in  his  attacks  on  the  People's  case. 
He  is  peculiarly  suited  to  criminal  defenses.  Of  strong,  thick-set 
German  frame,  smooth,  pale  face,  strong  lungs  and  iron  will,  full 
of  ingenuity  and  experience,  he  carries  his  client's  case  through 
the  courts  with  a  determination  to  win.  He  said  to  the  jury: 

None  of  us  can  understand  this  case  but  the  one  in  danger.  We 
cannot  rid  ourselves  of  a  coolness  in  the  concern  of  another.  But 
one  has  already  felt  the  chill  and  darkness  of  that  dread  place 
which  your  verdict,  if  unfavorable,  will  consign  him.  A  year  ago 
and  his  condition  was  as  fair  as  yours.  He  was  not  rich,  but  riches 
are  not  needed  to  be  happy.  He  had  his  home  and  the  respect  of 
hig  neighbors.  What  more  could  he  desire  ?  But  on  a  sudden,  in 


288  MODERN  JURY  TRIALS. 

the  midst  of  fair  prospects,  his  once  quiet  town  resounds  with  the 
cry,  "  Field  is  murdered  by  Vanderpool !" 

From  that  time  two  parties  arose  in  that  town.  In  a  day  or  two 
the  body  was  found  in  the  streets  of  Manistee,  Then  he.was  tried, 
not  by  a  jury,  but  by  the  populace.  He  was  taken  to  a  prison  cell. 
His  wife  turned  from  their  home,  in  the  bitterness  of  desolation,  in 
the  depth  of  despair.  *  *  You  may  have  heard  the  ques- 
tion, "  If  Vanderpool  did  not  kill  Field,  who  did  ?  "  Field  is  dead; 
the  rope  and  body  are  both  found  in  the  river  below.  Of  the  three 
thousand  five  hundred  people  in  that  village,  who  was  less 
likely  to  do  the  foul  deed  than  he?  Being  in  the  bank  does  not 
show  guilt.  It  was  day.  *  *  *  Where  is  Field  ?  I  can- 
not call  upon  the  great  deep  to  give  up  its  secrets.  I  cannot  call 
back  the  ghost  of  the  departed.  But  if  I  could  I  would.  I  would 
call  him  back  from  this  untimely  taking  off  and  bid  him,  with  his 
cold,  blue  lips,  reveal  the  truth  !  And  you  would  see  where  guilt 
is  charged  innocence  remains.  *  *  *  I  do  not  desire  to 
appeal  to  your  sympathies.  I  claim  his  discharge  as  a  matter  of 
right.  I  insist  upon  this  whatever  your  opinions  were.  Although 
you  saw  strong  circumstances  of  guilt,  I  beg  you  to  think  that  it 
is  not  a  difficult  thing  to  array  circumstances  which  would  as 
readily  apply  to  the  real  offender  were  he  obtained.  Followed,  as 
I  shall  be,  by  a  man  of  eminent  genius  and  talents,  I  warn  you  to 
remember  that  I  have  explained  each  and  every  circumstance  in 
the  light  of  reasonable  innocence. 

But  you  must  pause  and  analyze  the  consequences  of  that  con 
viction  he  would  force  upon  this  respondent !  Be  sure,  and  be 
guarded,  and  be  not  deceived  by  undue  weight  attached  to  facts 
by  the  acumen  of  counsel  interested  to  convict.  I  ask  you  to  use 
your  own  judgment,  to  make  new  applications  of  facts  for  your- 
selves. The  respondent  is  entitled  to  the  clear,  unbiased  individ- 
ual judgment  of  each  and  every  juror  and  each  and  every  doubt. 
And,  if  he  is  convicted,  and  that  conviction  is  wrong,  and  sometime 
hence  it  should  be  found  that  after  all  he  is  innocent,  and  in  con- 
sequence of  this  terrible  doom  that  you  have  inflicted  upon  him, 
reason  should  have  tottered  on  her  throne,  and  from  being  a  bright 
young  man,  in  the  flower  of  his  usefulness,  he  should  become  a 
raving,  driveling  idiot,  and  that  wife,  whose  sorrowful  face  has 
looked  in  your  eyes  for  the  last  four  weeks,  had  gone  down,  heart- 
broken, to  an  early  grave,  it  would  not  be  one  twelfth  part  of  this 
wrong  to  you,  sir,  but  to  you,  and  to  you,  and  to  you,  will  lie  this 
crushing  weight,  upon  your  conscience,  in  your  slumber  and  youi 


TRIAL  OF  VANDERPOOL.  289 

waking  hours,  preserve  to  the  day  of  your  death,  to  upbraid  your 
conscience  with  a  sense  of  its  dreadful  wrong ! 

As  a  convenience  to  his  own,  no  unwillingness  to  encounter  a 
protracted  session  should  obtain,  and  no  anxiety  to  get  home  will 
excuse,  until  each  juror  reaches  his  own  sound  judgment  from  the 
argument  of  counsel  and  the  evidence  in  the  case.  If  he  does  short 
of  this,  he  violates  his  conscience,  and  that  will  whisper  to  him 
often,  when  alone,  as  he  lies  down  at  night  and  rises  in  the  morning, 
if  he  has  done  a  cowardly  thing  and  violated  the  laws  of  the  land. 

I  cannot  speak  to  you  of  the  terrible  consequences  of  a  verdict 
of  guilty.  In  contemplating  that  I  must  think  of  my  own  wife, 
my  own  family,  and  how  such  wretchedness  upon  one  once  so 
happy,  and  then  so  miserable.  You  too  have  faithful  wives  and 
children.  You  will  think  of  them,  not  for  the  purpose  of  overcom- 
ing your  reason,  not  of  swaying  your  judgment,  but  for  inclining 
you  to  pause  and  think  solemnly  of  the  work  we  are  engaged  in. 
Remember  that  a  man's  liberty  and  the  light  of  heaven  that  now 
shines  upon  him  are  as  pleasant  and  dear  to  him  as  they  are  to  you, 
and  that  a  verdict  of  guilty,  if  pronounced  against  him,  shuts  him 
out  forever  from  them  all.  If  compelled  to  do  this,  do  it  sadly, 
unwillingly.  But  I  solemnly  believe,  when  you  do  your  whole 
duty,  and  give  him  the  full  benefit  of  the  doubt  which  these 
strange  circumstances  of  this  mysterious  case  have  left,  I  beg  you 
to  do  it,  and  when  you  stand  for  judgment  on  your  own  account, 
the  deed  shall  smile  by  your  side,  and,  like  an  angel,  plead  trum- 
pet-tongued  for  your  acquittal. 

Mr.  Lothrop's  manner  was  in  striking  contrast  to  his  opponent. 
His  rounded  periods,  his  impressive  words,  his  straightforward 
manner,  attracted  every  eye,  riveted  every  ear,  and  carried  convic- 
tion to  every  heart.  But  still,  as  in  his  graphic  way,  he  set  forth 
Field's  good  and  loving  disposition,  his  winning  ways,  his  cow- 
ardly murder  that  left  his  murderer  beyond  human  sympathy. 
During  such  passages  the  accused  looked  hard  at  the  table  by 
which  he  was  sitting.  Mr.  Lothrop  spoke  with  terrible  earnestness 
of  the  facts  that  pointed  to  the  prisoner's  guilt.  The  audience 
gazed  in  silence  and  listened  attentively  to  every  word. 

He  said : 

I  know  nothing,  gentlemen  of  the  jury,  of  your  impressions  or 
prepossessions  in  this  case.     Each  and  every  one  of  you  were  and 
still  a,re  entire  strangers  to  me,  but  I  assume  that  you  came  pre- 
pared to  hear  and  determine  this  case  on  the  evidence,  and  I  ask  no 
19 


290  MODERN  JURY  TRIALS. 

more.  I  shall  seek  to  hold  you  to  the  forms  and  rules  of  evidenc* 
already  mentioned  in  your  hearing. 

It  is  indeed  your  duty,  each  one  of  you,  to  come  to  this  case  as 
an  individual,  but  faithfully  to  confer  with  each  other  and  reach 
your  conclusion  after  a  full  and  fair  conference.  Indeed,  after  all 
of  this,  if  after  all  fair  effort,  with  due  respect  for  personal  pride 
of  individual  opinion,  in  a  fair  conference  of  reason,  you  fail  to 
agree,  then  I  concur — but  not  till  then — that  it  is  your  duty  to 
stand.  But  bring  with  you  the  whole  stock  of  your  acumen  and 
understanding  before  you  reach  a  conclusion  that  you  have  dis- 
charged your  whole  duty.  *  *  * 

We  all  remember  that  Herbert  Field,  on  the  fifth  of  September, 
'69,  disappeared,  and  by  no  accidental  circumstance.  We  know  it 
was  no  eccentricity  of  youth.  We  know  he  was  murdered/  and  a 
murder  so  detestable,  that  even  the  cold  and  impassible  nature  of 
my  friend  was  compelled  to  pronounce  a  cowardly  mnrder.  *  *  * 

There  was  not  a  living  soul  that  I  know  of  in  the  world,  stand- 
ing in  more  social  relation  with  him,  that  was  not  friendly  to  young 
Herbert  Field — a  boy  just  verging  into  manhood,  with  hopes  and 
impulses,  noble,  lovable  and  generous.  Who  could  seek  to  do  him 
wrong?  The  doors  of  the  best  families  open  to  him  in  Manistee. 
The  best  men  for  his  associates. 

Suddenly,  as  if  it  were  the  going  out  of  a  light,  he  disappears. 

It  is  found  when  the  body  comes  to  light  he  was  taken  unawares. 
A  cowardly  assassin  had  quenched  all  the  glory  of  his  young  and 
hopeful  life  by  a  blow  with  a  hatchet  or  weapon  in  his  skull  from 
the  rear !  Now,  gentlemen,  if  ever  there  was  an  inquisition  for 
human  blood  it  is  to  be  made  in  a  case  like  this.  The  people  of 
the  State  cannot  afford  that  such  a  cowardly  murderer  as  his  go 
unpunished. 

Sympathy  !  Sympathy  for  whom  ?  There  is  one  place  where  it 
should  never  enter — the  jury  box  and  the  judge's  bench.  He  may 
have  friends,  relatives,  wife  and  children,  but  so  far,  gentlemen,  aa 
operating  to  shield,  it  only  makes  his  crime,  if  guilty,  more  detest- 
able. "  He  who  has  a  wife  and  children,  has  given  hostages  to 
society!"  *  *  *  * 

The  burden  of  proof  is  on  the  People,  and  their  evidence  is  cir- 
cumstantial, say  our  friends  !  True.  But  not  one  day  of  your 
lives  do  you  live  without  relying  on  circumstantial  evidence.  You 
cannot  walk  a  block  without  meeting  circumstantial  evidence  in 
common  affairs.  You  got  up  yesterday  morning,  and  saw  snow. 
It  was  snow  as  surely  as  if  you  had  seen  it  fall.  You  know  it  felL 
It  is  here  as  a  fact.  You  may  see  on  it  the  track  of  a  cat.  Yon 


TRIAL  OF  VANDERPOOL.  291 

know  that  a  cat  has  crossed  in  that  direction.  A  man  drives  up 
with  a  horse  covered  with  foam.  You  say  he  has  been  driven  rap- 
idly. You  see  he  is  shod.  It  is  the  work  of  a  man.  You  did  not 
see  the  shoe  nailed  on.  This  evidence  is  all  circumstantial. 

An  able  author  has  written  a  book  citing  eleven,  really  strange 
cases  of  conviction  on  circumstantial  evidence,  and  one — only  one 
— wrongfully  convicted  ! 

Our  friends  name  the  Parkman  and  Webster  case,  and  try  to 
show  that  the  body  of  Field  may  not  be  Field  at  all.  But  Dr. 
Parkman's  body  was  cut  to  pieces,  limb  from  limb.  The  head  was 
never  found.  It  was  consumed  in  a  crucible,  smelting  every- 
thing that  was  ever  put  into  it.  But  even  this  left  traces  of  detec- 
tion, for  the  work  of  the  dentist  refused  to  give  way  to  the  heat  in 
the  crucible,  and  the  murderer  was  convicted.  *  *  *  * 

No  motive  ?  Field  had  been  trying  to  sell  out  and  go  into  other 
business.  He  had  drawn  five  hundred  dollars,  and  this  did  not 
please  Vanderpool.  Paper  was  falling  due.  Yanderpool  needed 
money.  Why  he  said,  "I  am  taking  my  money  home  every  night 
and  sleeping  with  my  revolver  under  my  pillow."  Afraid  of  Field, 
the  boy  !  A  revolver  for  him  ! 

Here  is  just  the  motive.  A  division,  a  wrangle.  *  *  They 
come  together  on  Sunday.  They  execute  papers.  They  are  in  the 
bank  alone.  That  money  taken  from  that  bank  may  cripple  the 
bank.  Credit  is  low,  money  is  scarce.  The  fatal  time  has  come. 
A  muffled  noise  is  heard,  and  then  all  is  still.  In  a  half  hour  the 
defendant  goes  out  of  the  bank  clothed  in  the  pantaloons  of  Field. 
He  has  Field's  dog  with  him.  He  stays  during  the  afternoon  with 
his  friends.  Night  comes,  and  for  a  time  he  disappears.  He  has 
gone  from  their  sight.  Morning  comes,  and  finds  him  in  the  bank 
so  early  as  to  attract  attention.  He  cleans  the  bank,  removes  the 
carpet,  burns  a  portion,  scrubs  the  floor.  In  a  little  while  it  is 
rumored  that  Field  is  gone  I  He  instantly  charges  he  has  run 
away.  Suspicions  of  blood  are  seen.  He  is  arrested.  A  few  days 
later  the  body  comes  ashore.  It  comes  to  tell  how  Field  was  slain! 
He  manufactures  a  letter,  pricked  with  a  pin,  in  jail,  to  show  two 
sailors  did  the  deed  for  money.  That  is  detected.  *  *  *  * 

I  repeat  that  these  facts  speak  in  unmistakable  language  of  hi? 
guilt.  They  tell  a  story  that  cannot  be  disputed,  even  though  one 
rise  from  the  dead.  Murder,  though  it  hath  no  tongue,  yet  shall  it 
speak  a  miraculous  language.  All  of  the  mist  rises  up  before  us 
here,  the  obscurity  that  surrounded  the  case  has  disappearec"..  It 
seems  as  though  the  walls  of  that  bank  were  lifted  up  ard  the 
bright  light  of  that  September  sun  should  stream  in,  and  there, 


292  MODERN  JURY  TRIALS. 

gentlemen  of  the  jury,  in  the  light  of  all  this  evidence,  you  see, 
standing  over  the  body  of  his  prostrate  victim,  his  hands  dripping 
with  his  blood,  the  murderer  of  Herbert  Field.  It  is  not  I,  gentle- 
men, who  say  this.  It  is  not  I  who  condemn  or  conviet  this  man. 
It  is  not  you  who  condemn  or  convict,  but  that  inscrutable  Provi- 
dence that  pursues  rightfully  the  path  of  the  transgressor.  It  is 
that  almighty  power  that  no  human  cunning  can  overcome.  The 
very  stones  cry  out  against  it. 

Gentlemen  of  the  jury,  in  the  name  of  that  innocent  blood,  of 
that  young  life  so  cruelly  slain,  in  the  name  of  The  People  of  the 
State,  I  ask  at  your  hands  the  verdict  of  Justice  upon  the  murderer 
of  Herbert  Field 

The  jury  stood  nine  for  conviction,  three  for  acquittal. 


THE  THIKD  TRIAL  OF  VANDERPOOL. 


After  the  disagreement  of  the  jury  on  the  second  trial  in  the 
Kalamazoo  circuit,  the  venue  was  changed  to  the  Barry  circuit, 
and  the  case  came  up  for  its  third  trial  in  August,  1871,  before 
Judge  Hoyt  of  that  circuit.  The  State  was  represented  by  E.  S. 
Eggleston  and  Thomas  B.  Church,  of  Grand  Rapids.  The  prisoner 
was  defended  by  D.  Darwin  Hughes,  of  Grand  Rapids,  and  Henry 
M.  Cheever,  of  Detroit. 

The  trial  commenced  on  the  eighth  of  August,  1871,  but  several 
days  were  consumed  in  obtaining  a  jury,  so  that  it  was  the  fifteenth 
of  August  before  the  introduction  of  testimony  began. 

The  trial  lasted  twenty-seven  days,  amid  most  intense  excite- 
ment; the  court-house  in  the  city  of  Hastings  being  crowded  from 
day  to  day;  the  audience  filling  not  only  every  seat,  but  every 
available  standing  place.  The  arguments  of  counsel  occupied  five 
days. 

PERSONNEL   OF   COURT   AND    COUNSEL. 

BIKKET  HOTT,  the  judge  of  the  court,  was  but  thirty  years  of 
age  at  the  time  of  the  trial.  At  the  outbreak  of  the  rebellion,  he 
entered  the  army  as  sergeant  of  Company  A,  5th  Michigan  cavalry; 


TRIAL  OF  VANDERPOOL.  293 

participated  in  the  battles  of  the  war;  rose  to  the  rank  of  captain, 
and,  upon  his  return  from  the  army,  passed  through  the  law 
department  in  the  University  of  Michigan;,  was  admitted  to  the 
bar  in  1867,  and  entered  upon  the  practice  of  his  profession  in 
Grand  Rapids.  He  was  elected  judge  of  the  Barry  circuit  in  1869, 
and  this  was  among  the  first  cases  tried  by  him  when  on  the  bench. 
He  showed,  throughout  the  trial,  a  clearness  of  judgment  and 
impartiality  in  his  rulings,  and  ability  in  discrimination  in  the 
points  presented  by  counsel,  which  commended  itself  to  the  public 
and  the  bar. 

E.  S.  EGGLESTON,  junior  counsel  for  the  prosecution,  born  in 
Batavia,  New  York,  in  1825,  graduated  at  Albion  college  in  1849, 
was  admitted  to  the  bar  in  1851,  and  soon  after  became  a  partner 
of  Judge  Withey,  now  of  the  United  States  district  court.  He  had 
been  prosecuting  attorney  of  the  county,  was  United  States  consul 
at  Cadiz,  Spain,  during  the  war,  and  had  become  one  of  the  mos* 

prominent  members  of  the  bar  of  Western  Michigan. 

* 

THOMAS  B.  CHURCH,  senior  counsel  for  the  prosecution,  was  born 
in  Massachusetts  in  1820;  graduated  at  Trinity  college,  Hartford; 
came  to  this  state  in  1842,  and  began  practice  in  Grand  Rapids; 
had  been  a  prominent  democratic  politician;  filled  the  office  of 
prosecuting  attorney;  was  a  member  of  the  state  legislature,  mayoi 
of  Grand  Rapids,  member  of  the  state  constitutional  convention, 
and  a  candidate  for  congress  on  the  democratic  ticket.  He  con- 
ducted the  first  trial  on  the  part  of  the  prosecution,  and  it  was  due 
largely  to  his  ability  and  the  management  and  preparation  of  the 
case  that  a  conviction  resulted.  He  is  regarded  as  one  of  the 
ablest  advocates  and  criminal  lawyers  in  Western  Michigan. 

HENRY  M.  CHEEVER,  junior  counsel  for  the  defense,  was  born  in 
New  York  State,  in  1832;  graduated  at  Michigan  University  in 
1853,  when  twenty-one;  studied  his  profession  in  the  city  of 
Detroit,  when  twenty-two; " commenced  practice  in  1854;  avoided 
all  political  life  and  devoted  himself  exclusively  to  his  profession. 
He  is  tall,  slim,  with  brown  hair  and  beard.  As  a  lawyer,  Mr. 
Cheever  holds  to-day  a  rank  with  the  first  at  the  bar.  He  has  the 
rules  of  evidence  at  his  finger  ends,  and  has  studied  thoroughly 
the  decisions  of  our  Supreme  Court,  which  are  rapidly  becoming 
a  great  body  of  laws,  covering  cases  of  almost  every  description. 
His  cross-examinations  are  the  admiration  of  his  professional  breth- 
ren, and  the  terror  of  untruthful  witnesses.  He  has  a  way  of 
stripping  falsehood  of  -all  its  covering  and  showing  it  in  its  naked 


294  MODERN  JURY  TRIALS. 

deformity  His  arguments  are  uniformly  good.  He  never  talks 
for  the  sake  of  talking,  and  arranges  what  he  says  in  a  concise  and 
logical  form,  that  makes  it  exceedingly  hard  to  break  through. 
He  never  repeats  and  never  becomes  tedious;  having  that  rare  fac- 
ulty of  always  knowing  when  to  stop. 

D.  DAEWTN  HUGHES,  senior  counsel  for  the  defense,  was  born  in 
New  York  state,  in  1823  ;  admitted  to  the  bar  at  twenty-one; 
practiced  his  profession  in  Marshall  a  number  of  years,  and  moved 
to  Grand  Rapids  in  1869.  He  devoted  himself  exclusively  to  his 
profession,  keeping  entirely  aloof  from  politics,  and  ranks  among 
the  ablest  lawyers  in  the  state,  as  a  counselor  and  advocate,  both 
in  the  Supreme  Court  and  the  trial  of  cases  before  a  jury.  He  is 
one  of  the  most  skillful  and  able  of  criminal  lawyers,  and  justly 
stands  at  the  head  of  his  profession. 

The  evidence  elicited  and  arguments  produced  on  this  trial  ren. 
dered  it  celebrated.  Resting  entirely  on  circumstantial  evidence,  it 
was  one  of  the  most  remarkable  cases  in  the  criminal  annals  qf  the 
Northwest.  Intense  excitement  prevailed  throughout  the  state 
during  the  trial,  prevailing  sentiment,  however,  being  in  favor  of 
the  guilt  of  the  prisoner.  The  evidence  for  the  prosecution  was 
the  same,  substantially,  as  it  had  been  on  the  two  previous  trials. 
The  defense  differed  radically  from  the  defense  on  former  trials, 
with  new  and  other  testimony  of  great  importance. 

A  remarkable  feature  of  this  trial  was  the  attendance  in  court, 
from  day  to  day,  of  Mrs.  Field,  the  mother  of  Herbert  Field,  who 
it  was  alleged  had  been  murdered.  She  sat  most  of  the  time 
closely  veiled,  and  also  was  closely  watched  by  officers,  as  it  was 
feared,  and  with  reason  too,  that  she  might  attempt  violence  upon 
the  man  who  she  believed  had  murdered  her  son. 

Upon  entering  court,  the  first  day,  seeing  one  of  the  officers, 
who  she  supposed  was  Vanderpool,  she  stepped  in  front  of-  him, 
and  raising  her  hand  to  Heaven,  exclaimed,  "  Where  is  my  son ; 
where  is  Herbert  Field  ?  Oh,  wretched  man  !"  Again,  at  the 
close  of  the  trial,  as  the  counsel  for  the  prisoner  were  leaving  the 
city  after  they  had  taken  passage  in  the  carriage  which  was  to 
ronvey  them  to  the  depot,  she  stepped  up  and  exclaimed,  "  The 
blood  of  my  son  is  in  Michigan,  and  will  yet  be  avenged  upon  Van- 
derpool and  his  defenders  !  You  will  have  your  share  of  the  pun- 
ishment, and  I  shall  meet  you  at  the  judgment  1" 

The  prisoner  was  attended  throughout  th.e  trial  by  his  young  and 


TRIAL  OF  VANDERPOOL.  295 

beautiful  wife.  She  sat  by  bis  side  day  after  day,  in  tbe  court 
during  the  trial,  and  occupied  the  cell  with  him  in  the  jail.  Van- 
derpool  himself,  like  other  prisoners  known  to  tradition  and  history, 
found,  while  in  jail,  not  his  flower,  like  Picciola,  but  a  pet  in  a 
beautiful  white  kitten,  that  strangely  came  to  his  cell  on  the  very 
day  of  his  incarceration,  and  remained  throughout  the  entire  trial, 
refusing  to  stay  anywhere  else,  and  left  as  soon  as  he  was  acquitted. 
The  prisoner  was  an  educated  man,  with  talent  for  drawing,  and 
his  cell  was  adorned  with  drawings  and  etchings  from  his  own 
pencil. 

The  theory  of  the  prosecution,  that  Field  had  been  murdered  in 
the  Manistee  bank  between  eleven  and  twelve  o'clock  at  noon, 
and  that,  during  the  early  evening  following,  the  prisoner  had 
removed  the  body  and  all  evidences  of  the  murder,  which  had  not 
been  combatted  on  the  former  trials,  was  repudiated  by  the  defense 
upon  this.  Taken  in  connection  with  the  new  branch  of  testimony, 
as  to  the  finding  of  a  strange  boatman  adrift  in  a  small  boat  some 
two  weeks  after  the  disappearance  of  Field,  and  at  about  a 
place  in  the  lake  from  which  it  was  insisted  the  lake  currents  and 
the  winds  would  have  carried  the  body,  placed  the  disappearance 
of  Field  at  an  entirely  different  time. 

This  new  theory  of  the  defense  was  one  of  the  most  interesting 
points  of  the  hotly  contested  trial.  During  the  days  in  which  the 
jury  was  being  impaneled  some  amusing  incidents  occurred;  one  of 
the  jurors,  on  his  examination,  having  admitted  to  have  read  one 
of  the  counsel's  arguments  on  the  former  trial,  was  asked  by  Mr. 
Hughes,  "  Why  didn't  you  read  mine  ?"  To  which  he  replied,  he 
missed  that  number  of  the  paper.  "  He  can  congratulate  himself 
on  that  loss,"  said  Mr.  Cheever.  "Yes,"  responded  Mr.  Hughes, 
"I  had  to  read  it,  and  I  know."  Another  being  asked  how 
long  he  had  lived  in  Barry  county,  answered  nine  months;  and 
that  he  had  lived  twenty-six  years  and  one  month  before  that  in 
Eaton  county.  He  was  asked,  "  How  old  are  you  ?"  and  answered 
"  Twenty-six."  "  Twenty-six !"  said  Mr.  Church,  inquiringly, 
"  Twenty-six  years  and  one  month  in  Eaton,  nine  months  in  Barry, 
and  only  twenty-six  years  old;  how  do  you  make  that  out,  sir  ?" 

"Oh!"  said  Mr.  Cheever,  "He  does  not  count  the  time  he  spent 
in  Barry  county  as  a  part  of  his  life." 

The  testimony  of  the  prosecution  was  substantially  as  on  the 
former  trial.     That  Field  and  Vanderpool  were  partners  in  the 
banking  business,  in  Manistee,  until  September  4,  1869,  Field  hav 
ing  seven  thousand  and  Vanderpool  two  thousand  dollars  in  the 
business.     That  Field  had  become  dissatisfied;  that  both  were  seen 


296  MODERN  JURY  TRIALS. 

to  enter  the'bank  together  about  eleven  o'clock  Sunday  morring, 
September  fifth,  and  Field  had  never  been  seen  alive  afterwards. 
That  September  seventeenth  Field's  body  was  found  on  the  beach  of 
Lake  Michigan,  near  Frankfort,  twenty-five  miles  north  of  Manistee. 
Field  had  been  living  with  a  maiden  lady  named  Rachel  Hill, 
whom  he  called  aunt,  and  who  had  loaned  him  his  banking  capital. 
Monday  morning,  September  sixth,  between  five  and  six  o'clock, 
Vanderpool  was  seen  washing  out  the  bank,  and  when  he  was  asked 
as  to  Field,  said  he  had  run  away  and  taken  some  of  his  (Vander- 
pool's)  money.  Large  portions  of  the  carpet  had  been  cut  out  and 
burned  in  the  stove,  shreds  being  found  therein;  the  floor  where 
the  carpet  had  been  cut  out  had  been  scoured,  and  was  wet;  Van- 
derpool acted  confused  during  the  day,  forgot  the  combination  of 
the  safe,  and  could  not  open  it;  and  drops  of  blood  were  found  just 
outside  the  bank,  leading  down  some  steps  to  the  river.  This 
blood,  expert  testimony  said,  was  human  blood;  which  testi- 
mony had  never  been  contradicted  or  explained  until  this  third 
trial,  by  the  defense.  On  that  Sunday  evening,  parties  coming 
down  the  river  in  a  canoe  heard  a  splash  in  the  water  and  saw  a 
person  crouching  in  a  white  boat  and  paddling  down  stream. 
During  Vanderpool's  imprisonment,  it  was  shown  he  had  written 
letters  to  prominent  people  in  Manistee,  giving  them  to  his  wife  to 
be  mailed  in  New  York,  purporting  to  be  signed  by  one  Nolan, 
stating  that  Vanderpool  was  not  guilty.  Red  spots,  claimed  to  be 
blood,  were  also  found  on  the  carpet  which  was  not  destroyed.  A 
newspaper  with  three  bloody  finger  marks  on  one  side;  a  hatchet, 
cracks  in  the  floor,  moist  with  a  red  substance  in  them;  and  some 
human  hair  adhering  to  the  newspaper  were  found;  the  body  had 
a  fracture  on  the  head;  it  was  found  with  a  piece  of  rope  tied  with 
a  sailor's  knot  about  it,  with  a  slip  noose,  as  though  a  heavy  weight 
had  been  attached  and  had  worked  loose;  on  the  left  arm  of  the 
body  found  was  an  India-ink  tattooing;  the  pants  on  the  dead  body 
had  the  name  of  Herbert  Field  upon  them;  the  body  had  a  ring, 
identified  as  Field's,  and  a  twenty  dollar  gold  piece  which  he  had 
been  seen  to  have.  It  was  shown  that,  on  that  Sunday  evening, 
about  ten  or  eleven  o'clock,  Field  applied  for  medicine  at  a  physi- 
cian's, saying  he  had  a  diarrhoaa.  The  bank  books  showed  altera- 
tions under  date  of  September  1,  1869;  in  that  money  drawn  by 
Field  that  day,  seven  hundred  dollars  had  been  altered  to  seven- 
teen hundred,  and  in  another  place  four  hundred  had  been  altered 
to  fourteen  hundred.  After  Field's  disappearance,  Vanderpool 
showed  a  receipt  acknowledging  full  satisfaction,  and  a  dissolution, 
signed  by  Field. 


TRIAL  OF  VANDERPOOL.  297 

The  prosecution  called  Jackson  B.  Wilcox,  a  dentist  who  occu- 
pied rooms  over  the  bank  at  the  time  of  the  murder.  He  testified 
to  having  been  also  early  up  on  Monday  morning,  and  having 
seen  Vanderpool  at  the  bank;  to  having  seen  blood  on  the  steps  at 
the  side  of  the  bank  leading  down  to  the  river.  On  the  testimony 
of  this  witness  was  founded  one  theory  of  the  defense  on  this  third 
trial.  On  cross-examination  the  witness  testified  that  when  he 
went  down  the  steps  at  the  side  of  the  bank  he  walked  on  the 
opposite  side  from  the  blood  spots;  that  he  had  been  a  traveling 
peddler;  traded  horses;  had  been  living  in  many  places,  a  short  time 
in  each;  that  he  slept  in  his  office  on  that  Sunday  night  of  the  dis- 
appearance; that  he  avoided  the  blood  spots  because  they  struck 
him  as  unusual;  that  on  Wednesday  following  he  was  under  the 
bank  building;  that  others  were  digging;  that  when  others  came  in 
to  dig,  hunting  for  signs  of  the  murder,  he  went  to  a  widow's  near 
by  and  asked  her  to  let  him  saw  wood,  telling  her  he  wanted  to  get 
away  from  the  bank  building  that  afternoon;  did  not  know  that  he 
told  her  why,  but  said  he  wanted  to  be  in  the  woods,  out  of  the 
way  of  the  people;  asked  the  widow  if  she  thought  Field  was  mur- 
dered or  had  run  away;  that  he  asked  the  widow  to  let  him  out  at 
the  back  door  of  her  house. 

On  the  part  of  the  defense  the  following  new  testimony,  not 
introduced  on  former  trials,  was  given  : 

A  Mrs.  Dunlap  testified  that  she  saw  the  dentist,  Wilcox,  on  the 
Monday  evening  following  Field's  disappearance;  she  asked  him  if 
he  knew  that  Field  had  disappeared,  and  he  said  no,  he  had  not 
heard  of  it;  but  perhaps  he  had  been  drowned  or  tipped  over  on 
Lake  Michigan.  (The  cross-examination  of  the  dentist  had  already 
shown  that  Vanderpool  had  told  him  of  Field's  disappearance  early 
Monday  morning.)  » 

On  the  part  of  the  defense  the  question  was  then  raised  as  to 
their  right  to  read  the  testimony  of  several  witnesses,  given  on 
former  trials,  but  who  were  now  out  of  the  State.  After  a  full 
argument  of  the  question,  the  court  admitted  the  testimony  on  the 
behalf  of  the  defendant.  Testimony  was  also  introduced  as  to 
the  physical  incapacity  of  Vanderpool,  by  reason  of  a  hernia,  to 
dispose  of  the  body  of  Field  as  claimed. 

The  defense  then  offered  another  branch  of  the  new  testimony 
upon  this  trial,  putting  upon  the  stand  one  Captain  William  R 
/Smith,  who  testified  that  he  was  captain  of  the  schooner  Crawford, 
plying  between  Buffalo  and  Chicago;  that  he  sailed  from  Chicago 


298  MODERN  JURY  TRIALS. 

September  14,  1869,  and  passed  twelve  miles  off  the  mouth  of  the 
Manistee  river;  that  on  the  fifteenth  he  saw  a  small  white  boat  with 
a  man  in  it,  about  a  mile  to  starboard;  that,  thinking  the  man  was 
in  distress,  as  the  sea  was  rough,  he  altered  the  schooner's  course 
for  him;  that  when  within  thirty  feet  of  the  small  boat,  the  witness 
hailed  him  and  asked  him  if  he  wanted  to  come  aboard  of  the 
schooner,  but  he  made  no  reply.  He  was  evidently  in  distress,  was 
sitting  on  the  bottom  of  the  boat,  with  a  small  piece  of  board  in 
his  hand;  the  boat  was  without  sails  or  oars;  that  he  threw  him  a 
line,  which  the  man  caught,  and  told  him  to  move  to  the  bow  of 
the  boat  or  he  would  capsize  her,  but  he  paid  no  attention  to  the 
request;  the  schooner's  hands  hauled  Mm  alongside  and  took  him  on 
board:  on  taking  him  in,  the  small  boat  that  he  had  been  in  was 

*  O  * 

capsized ;  and  witness  told  the  hands  of  the  schooner  to  save  it,  and 
the  mysterious  man  then,  for  the  first  time,  spoke,  saying,  "  Let  the 
boat  go  to  hell;  I  have  had  enough  of  it."  The  strange  man  was 
taken  into  the  cabin  of  the  schooner,  and  changed  his  clothes. 
When  taken  on  board  he  had  on  a  coat  and  pants,  but  was  barefoot; 
he  said  he  had  been  out  two  days,  came  from  Big  Bauble  point; 
and  he  ate  ravenously.  The  witness  offered  to  laud  him  at  Macki- 
naw, the  man  refused,  and  said  he  did  not  want  to  go  back  to  the 
State  of  Michigan;  said  he  got  blowed  off  from  the  shore.  The 
witness  asked  him  if  he  had  any  money,  he  said  no.  Witness,  up 
to  this  time,  had  not  heard  of  the  disappearance  of  Field;  witness 
carried  the  strange  boatman  through  the  Straits  of  Mackinaw 
around  to  the  river  St.  Glair;  that  a  tug  which  towed  the  schooner 
stopped  to  wood  on  the  Canada  side,  and  the  strange  boatman  got 
on  to  the  tug  and  went  off  down  the  St.  Clair  river;  the  tug  was 
the  George  2f.  Bra<ly.  The  strange  man  said  his  name  was  Jacob. 
The  cross-examination  of  witness  failed  to  shake  him  in  the  least. 

The  next  witness  was  J/rs.  Margaret  Anderson,  who  testified 
that  she  was  cook  on  the  schooner  Crawford  on  the  trip  from  Chi- 
cago on  the  fifth  of  September,  1869.  She  corroborated  the  testi- 
mony of  Captain  Smith  as  to  the  picking  up  of  the  strange  boat- 
man, and  testified  that  he  had  on  two  coats;  that  the  next  day  after 
he  came  on  the  Crawford  he  came  into  the  cook's  galley  to  exam- 
ine something  secretly  which  he  had  in  his  left  breast  pocket;  that 
it  was  a  large  roll  of  greenbacks;  when  he  saw  her  looking  he 
put  it  back  instantly  into  his  pocket;  that  she  noticed  where  he 
slept  nights,  and  that  always  on  awakening  he  would  examine  this 
pocket;  that  she  had  not  heard  at  this  time  of  the  disappearance  of 
7ield;  that  the  strange  man  refused  to  talk  while  on  the  schooner. 


TRIAL  OF  VANDERPOOL.  299 

Charles  B.  Howard  testified  that  he  was  engineer  of  the  tug 
George  N.  Brady ;  that  the  strange  boatman  came  on  to  the  tug 
from  the  schooner  Crawford  at  the  Canadian  wood  yard  in  the  St. 
Clair  river,  as  testified  to  by  Captain  Smith;  that  the  strange  man 
had  a  bundle  which  he  kept  under  his  head  when  sleeping;  that  he 
helped  the  men  to  wood  the  tug,  and  that,  though  very  hot,  he 
kept  his  coat  on  and  buttoned  to  the  throat;  that  as  soon  as  the  tug 
touched  the  dock  in  Detroit,  and  before  her  lines  were  out,  the 
strange  man  jumped  off  and  passed  up  the  wharf. 

Captain  Anthony  Gurney  testified  that  he  was  a  sailor  and  cap- 
tain now  in  the  Government  employ,  building  lighthouses;  that  in 
1869  he  was  captain  of  the  tug  George  JV.  Brady,  and  towed  the 
schooner  Crawford  from  Lake  St.  Clair  to  Lake  Erie  late  in  Sep- 
tember, 1869;  that  he  took  this  strange  boatman  at  the  request  of 
the  captain  of  the  Crawford,  and  carried  him  up  to  Detroit  on  his 
tug;  that  he  helped  the  men  wood  the  tug;  kept  his  coat  buttoned 
to  the  chin,  though  the  day  was  warm;  slept  on  deck  with  a  bundle 
under  his  head;  spoke  to  no  one;  and  jumped  from  the  tug  at 
Detroit  before  the  lines  were  made  fast. 

Captain  Andrew  JET.  Mills  testified  that  he  lived  in  Detroit,  and 
owned  three  vessels;  saw  the  tug  George  N.  Brady  land  at  the 
time  spoken  of  in  Deti'oit;  saw  the  strange  boatman  jump  from 
her;  that  he  asked  witness  how  he  could  get  to  Canada,  and  wit- 
ness pointed  out  the  ferry  boat  just  landing;  that  he  saw  the 
strange  boatman  go  aboard  of  her,  and  that  was  the  last  he  saw  of 
him. 

The  defense  also  offered,  in  connection  with  this  testimony,  expert 
testimony  to  show  that  the  prevailing  winds  on  Lake  Michigan 
from  September  fifth  to  fifteenth  was  from  south  to  southwest; 
and  also,  by  diagrams  and  expert  testimony,  that  a  body  dropped 
twelve  miles  off  Manistee  river  within  two  or  three  days  of  the 
fifth  would  be  carried  by  the  current  to  the  beach  where  Field's 
body  was  found. 

The  defense  then  called  another  witness,  the  Rev.  J.  B.  FisJc, 
who  testified  that  a  week  after  Field's  disappearance,  while 
searching  with  others  for  the  body  of  Field,  in  a  dense  wood 
near  Canfield's  mill,  near  Manistee,  upon  the  bank  of  the  river, 
where  a  large  log  ran  into  the  water,  he  saw  evidence  of  a  dis- 
turbance of  the  ground  on  the  edge  of  the  river,  as  though  a 
small  boat  had  been  run  up  on  the  ground;  twigs  were  broken 
from  the  trees,  and  there  seemed  to  have  been  a  straggle. 


300  MODERN  JURY  TRIALS. 

Witness  was  then  asked  by  the  defense  what  he  thought  would 
produce  the  appearance  described.  After  objection  and  argument, 
the  court  admitted  the  testimony.  And  he  said,  "  The  prow  of  a 
boat;"  that  looking  around  he  found  a  wrapper  that  had  been  about 
a  package  of  money,  with  "  One  hundred  dollars "  marked  on  it, 
and  a  red  stain,  like  blood,  upon  it;  the  paper  was  produced  in 
court.  The  witness  further  testified  that  while  searching  he  saw 
the  dentist,  Wilcox,  in  this  vicinity. 

On  the  cross-examination  of  one  of  the  prosecution's  witnesses, 
one,  too,  who  had  testified  on  both  the  previous  trials,  John 
Blanchard  by  name,  and  from  whom  no  such  testimony  had  been 
previously  elicited,  the  defense  proved  that  fishermen  were  in  the 
habit  of  catching  whitefish  and  trout  at  the  mouth  of  the  river; 
that  they  dressed  these  fish  in  their  boats  before  they  carried  them 
up  the  bank  into  the  city;  that  when  dressed  at  the  landing  they 
were  put  in  baskets,  carried  up  into  the  main  street,  and  the  blood 
usually  dripped  from  the  baskets  ! 

The  witness  testified  that  on  Thursday  afternoon,  the  first  of 
September,  he  and  his  partner  thus  carried  a  load  of  freshly  dressed 
fish  to  the  bank  dock,  carried  them  up  the  bank  stairs  by  the  side 
of  the  bank  building,  and  that  witness  then  saw  blood  drip  from  the 
basket  on  the  stairs  ! 

The  defense  also  showed  by  expert  testimony  that  it  was  almost 
impossible  to  detect,  in  a  microscopic  examination  of  the  blood 
corpuscles,  human  from  fish  blood. 

AEGUMENT  OF  ME.  CHEEVEB  FOE  THE  PEISONEB. 

The  exordium  of  his  address  was  an  eloquent  appeal  to  the  jury. 
Of  the  body  of  his  remarks,  the  following  is  an  abstract : 

I  congratulate  you  here  that  neither  sickness  nor  death  has  come 
during  this  trial  to  diminish  our  number.  Like  passengers  on  an 
ocean  voyage,  we  came  together  as  strangers,  but  this  four  weeks 
has  made  us  friends,  and  when  you  shall  have  discharged  your 
solemn  duty  and  rendered  your  verdict,  I  trust  that  we  may  look 
back  upon  these  weeks  with  pleasure.  *  *  * 

You  have  nothing  to  do  with  the  young  man  who  was  stricken 
down  in  the  prime  of  life.  You  have  nothing  to  do  with  the 
bereaved  mother  who  believes  her  son  to  be  murdered,  who  sup- 
poses him  forever  lost  to  her  on  this  earth;  nor  with  the  wife  who 
may  be  worse  than  widowed  by  your  verdict.  It  is  your  business 
to  try  the  matter  before  you  as  if  the  prisoner  was  the- veriest  ruf^ 


TRIAL  OF  VANDERPOOL.  301 

flan  who  walks  the  earth,  instead  of  a  young,  honest  and  honored 
citizen  of  a  young  and  prosperous  city.  But  it  is  also  your  duty  to 
remember  that  it  is  for  the  interests  of  the  great  people  that  your 
decision  should  be  strictly  just  to  him  who  sits  here  charged  with 
crime,  and  that  it  is  better  that  "  ninety  and  and  nine  guilty  ones 
should  go  unpunished  rather  than  that  one  innocent  man  should 
suffer."  *  "  *  * 

Two  years  ago  this  man  and  his  young  wife,  this  pair,  whose 
only  wealth  was  love,  had  their  home  darkened  by  the  shadow  of 
a  black  and  terrible  suspicion — the  master  of  the  house  was  charged 
with  shedding  a  brother's  blood.  After  one  day  of  surmise  he 
was  seized  and"  hurried  into  prison,  a  hasty  trial  followed,  and  he 
was  condemned  to  a  life-long  incarceration.  *  *  * 

The  spectacle  presented  to  us  here  to-day  is  sublime,  for  in  this 
great  state  of  Michigan,  in  the  little  court-house  in  this  little  city 
of  Hastings',  is  being  silently  worked  out  the  problem  that  has 
been  such  a  mystery  for  two  long  years.  The  outside  world  goes 
on  with  its  hum  and  business,  little  caring  whether  George  Van- 
derpool  goes  forth  a  free  man,  or  not.  We  live  from  day  to  day 
and  follow  our  daily  avocations,  and  hardly  know  whether  there  is 
a  law  on  the  statute  books,  or  not.  *  *  * 

The  two  young  men,  Vanderpool  and  Field,  were  almost  boys 
in  business  when  they  began.  Field  was  an  open,  candid  youth — 
a  man  who  bore  his  heart  upon  his  sleeve;  his  partner  a  little  older, 
indeed,  but  fully  as  untrained  in  the  management  of  affairs.  These 
two  entered  into  a  copartnership,  by  the  terms  of  which  Field  could 
not,  if  he  would,  have  dissolved  the  relations  of  the  firm.  *  * 

Do  you  remember  how  the  learned  counsel  charged  this  prisoner 
yesterday  with  riotous  living  in  Saratoga  ?  He  drove  there  quietly 
in  a  modest  little  buggy,  which  he  had  borrowed  from  his  mother- 
in-law,  where  he  was  visiting  with  his  wife.  Thurber  found  this 
man  bringing  a  pitcher  of  milk  for  his  morning  meal.  Why  was 
it  that  this  millionaire — this  rich  banker  of  Manistee,  had  not  a 
train  of  servants  to  send  for  his  milk,  and  to  do  his  scrubbing  ? 
And  he  went  hastily,  before  his  breakfast,  to  begin  the  washing  out 
of  the  building,  did  he  ?  Gentlemen,  kow  easy  is  the  explanation. 
When  Thurber  came  to  the  bank  in  the  morning,  Vanderpool  told 
him  at  once:  "  Field  has  been  here  and  has  taken  his  papers."  When 
Vanderpool  heard  at  his  gate  that  morning,  from  Thurber  that 
Field  had  gone  away,  what  did  he  do?  Why,  he  did  just  what 
any  prudent  man  would  have  done;  he  set  down  his  milk  and 
started  for  the  bank,  for  what  ?  To  begin  scrubbing,  they  tell  you, 
lie  went  back,  as  any  prudent  man  would,  and  examined  his  safe 


302  MODERN  JURY  TRIALS 

to  see  what  he  had  taken,  and  when  Thurber  came  in,  he  said, 
"  Field  has  been  here,  for  his  papers  are  gone." 

THE   COBPTTS   DELICTI   NOT    PROVEN". 

They  must  prove,  first,  the  corpus  delicti — the  fact  of  the  com- 
mission of  the  crime — and  second,  the  guilt  of  the  respondent. 
But,  in  the  first  place,  they  have  not  even  proved  the  corpus  delicti. 
To  have  done  that,  the  identity  of  the  dead  body  must  have  been 
shown,  either  naturally  or  artificially,  as  the  law  says;  in  other 
words,  by  an  absolute  recognition  of  the  features,  or  by  attendant 
circumstances  of  clothing  or  other  peculiarity.  But  circumstantial 
identification  is  most  uncertain;  instance  after  instance  has  been 
known  where,  after  the  most  positive  artificial  recognition  and  con- 
viction resulting  therefrom,  it  has  been  discovered  that  the  whole 
thing  was  a  mistake,  and  that  the  punishment  was  misplaced  and 
unjust.  Even  recognition  by  features  is  not  always  decisive.  In 
this  case  not  one  witness  has  identified  the  body  washed  up  on  the 
Frankfort  beach  by  the  features;  only  one  has  sworn  to  knowing 
the  corpse  by  its  appearance,  and  he  knew  it  by  the  shape  of  the 
back  of  its  neck.  Have  any  of  you  ever  attended  a  masked  ball  ? 
Have  you  ever  tried  to  detect  even  your  intimate  friends  by  the 
shape  of  the  forehead,  or  the  lower  part  of  the  face,  when  the  rest 
of  the  features  were  concealed  ?  You  know  how  difficult  it  is  to 
do  this;  you  know  how  much  more  difficult  it  is  to  recognize  them 
by  their  forms.  How  absurd,  then,  it  is  to  try  to  declare  who  a 
person  is  by  the  "  shape  of  the  back  of  the  neck  !" 

Now,  where  are  the  artificial  proofs  that  this  body  was  the  body 
of  Herbert  Field?  That  of  paramount  importance,  perhaps,  and 
that  upon  which  the  issue  of  the  case  might  possibly  depend,  is 
found  in  the  testimony  of  Crispin  and  Slyfield.  The  first  could 
do  no  more  than  swear  that  the  same  articles  which  he  found  on 
the  body  at  Frankfort  he  saw  again  at  Manistee.  But  one  swore 
to  seeing  two  socks  upon  the  feet  of  the  body;  the  other  remem- 
bered but  one.  One  thought  there  was  a  cravat  upon  the  neck;  the 
other  thought  not.  When  Crispin  returned  from  his  search  for 
the  coroner,  he  found  the  pockets  of  the  pantaloons  upon  the  body 
turned  inside  out;  they  were  not  so  when  he  left  it — at  least  he 
had  not  noticed  that  they  were.  Here  is  the  torn  envelope,  with 
the  blurred  writing  "  Herbert  F "  upon  it,  and  this  is  one  of  the 
slight  circumstances  upon  which  the  People  base  their  identification. 
You  remember  how  witnesses  differed  about  the  human  figure  on 
the  arm;  how  Shurley  said  that  there  was  a  wreath  in  its  hands, 
and  how  Slyfield  declared  that  it  was  no  wreath,  but  a  row  of  stare 


TRIAL  OF  VANDERPOOL.  303 

above  its  head.  Dunning  said  the  figure  on  the  living  arm  of 
Field  was  adorned  with  a  wreath  of  evergreens,  Hall  knew  his 
friend  by  the  ring  he  wore  only,  and  Dr.  Shurley  admits  that  he 
would  not  have  known  who  it  was  if  he  had  not  seen  the  figure  on 
the  arm.  Now,  as  to  Dr.  Hopkins,  he  found  his  own  work  in  the 
filling  of  the  teeth  in  the  dead  man's  head,  and  in  the  separation 
of  teeth  by  filing.  But,  gentlemen,  Dr.  Hopkins  is  not  the  only 
man  who  ever  filed  a  patient's  teeth,  and  other  men  than  Field 
have  had  teeth  filed. 

Is  not  all  this  weak  evidence  by  which  to  prove  the  identification 
of  Field? 

Then,  as  to  the  clothing,  nothing  can  be  certainly  shown  by  that. 
The  pantaloons,  gold  piece,  shirt,  shirt-studs  and  ring  could  have 
been  left  with  the  body,  if  man's  devilish  ingenuity  had  made  it  a 
method  of  concealment  of  crime.  But  this  is  all,  and  the  frail  tes- 
timony of  the  dentist  fills  up  the  rest. 

And  now,  note  this  one  thing:  there  has  not  been  one  single 
syllable  to  tell  the  story  of  the  sex  of  the  corpse  thrown  up  upon 
the  sands.  There  is  not  one  word  to  show  that  it  was  the  body  of 
a  man.  If  it  was  Field's  corpse,  I  yield  to  no  one  in  my  sympathy 
with  his  sorrowing  friends.  But  my  duty  compels  me  to  remind 
you  that  there  is  not  only  not  enough  known  to  convince  you  that 
it  was  really  his,  but  there  is  not  enough  to  determine  whether  it 
was  that  of  a  man  or  of  a  woman. 

However,  admitting  for  the  sake  of  the  argument,  that  the  body 
was  that  of  Herbert  Field,  it  next  becomes  necessary  for  the  People 
to  show  that  murder  had  been  done,  and  for  this  they  have  to 
resort  wholly  to  circumstantial  evidence.  They  have  not  an  atom 
of  direct  proof  upon  the  subject.  Let  me  call  your  attention  to  an 
instance  which  Lord  Coke  gives  of  circumstantial  evidence  of  the 
strongest  kind.  A  man  rushes  out  of  a  building  with  a  drawn 
sword  in  his  hand,  dripping  with  blood;  within  the  house  is  found 
a  man  pierced  through,  and  in  the  agonies  of  death.  The  man 
with  the  sword  is  seized  for  murder  and  condemned,  though  he 
protests  his  innocence,  and  he  was  innocent.  Mark  the  explanation. 
He  had  entered  the  house  and  found  a  suicide  who  had  but  just  run 
himself  through;  he  had  seized  the  sword  and  drawn  it  out  of  the 
,  body,  and  rushed  forth  to  call  for  help.  The  truth,  when  it  was 
known,  was  simple  and  natural. 

Mr.  Cheever  here  continued  to  relate  numerous  actual  and  inter- 
esting instances  of  mistaken  conviction  upon  circumstantial  evi- 
dence, told  in  the  most  effective  and  vividly  descriptive  manner, 


304  MODERN  JURY  TRIALS. 

touching  upon  the  case  of  Miss  Rosenzweig,  and  that  of  Weather- 
wax,  the  latter  of  which  is  one  of  the  most  remarkable  illustrations 
of  the  point  in  all  criminal  history.  The  speaker  also  brought  up 
the  Colvin  matter,  an  old  and  almost  equally  remarkable  case 
which  occurred  in  Vermont  over  fifty  years  ago;  and  then 
proceeded: 

HOW   IS   THE    CHARGE    BROUGHT   HOME  TO  THE   PBISONEB  ? 

Now,  what  circumstances  have  the  prosecution  shown  or  attemp- 
ted to  show  upon  which  they  base  this  charge.  They  introduce 
witnesses  who  swear  that  they  saw  him  at  an  unusually  early  hour 
and  one  witness — Dr.  Wilcox — swears  that  he  saw  blood  on  the 
stairs  on  that  Monday  morning.  These  persons  who  were  up  and 
saw  him  were  about  their  lawful  business,  they  say,  but  may  not 
George  Vanderpool  have  been  about  his  lawful  business  as  well  aa 
they  ?  If  Field  had  not  been  missing,  would  these  circumstances 
have  been  considered  suspicious?  That  is  the  test.  Gentlemen, 
do  not  consider  circumstances  as  suspicious  which  would  not  be  con- 
sidered to  if  not  viewed  with  a  crime  in  the  background. 


NO    BLOOD    nr    "SUSPICIOUS    QUANTITIES       IS    FOUND. 

My  third  point  is,  that  there  was  no  suspicious  quantity  of  blood 
found  in  that  bank  on  Wednesday;  and,  first,  there  was  no  suspi- 
cious quantity  of  blood  on  the  floor,  for  all  that  was  on  the  floor 
on  Wednesday  must  assuredly  have  been  on  the  floor  on  Monday. 
But  of  all  persons  in  the  bank  on  that  day  and  on  the  next,  not  one 
noticed  any  blood,  nor  did  they  notice  any  blood  in  the  water 
that  was  swept  out.  They  sent  a  piece  of  board  from  the  floor  to 
Dr.  Duffield  for  examination,  and  they  testify  that  there  was  as 
much  blood  on  that  piece  as  on  any  other,  and  Dr.  Duflield  said 
that  he  found  no  blood  under  the  ink,  yet  several  of  these  wit- 
nesses testified  that  blood  cropped  out  from  under  the  ink.  They 
expect  to  collect  all  this  testimony  that  has  been  coming  in  for  so 
many  weeks,  and  hurl  it  at  you  in  a  mass,  and  convince  you  in  this 
way,  for  it  will  not  stand  analysis.  They  say  there  was  blood  on 
the  wall  and  desk.  Let  us  examine  these  spots  together,  for  they 
are  so  small  that  it  is  ridiculous  to  separate  them.  Conover  saysH 
there  was  blood  on  the  east  wall,  mark  that — but  if  he  had  beeo 
struck  while  sitting  at  his  desk,  we  would  have  expected  to  find 
the  spatters  of  blood  on  the  west  wall.  Besides,  Dr.  Shurley  testi- 
fied that  the  blood  would  continue  to  flow  in  jets  for  three  minutes, 
!>ut  if  so,  where  did  all  this  blood  go  ?  It  would  have  saturated 


TRIAL  OF  VANDERPOOL.  305 

the  carpet  for  a  much  larger  space  than  was  cut  out,  and  would 
have  run  through  the  floor  and  down  into  the  basement,  but  we 
find  none  there,  and  only  the  little  piece  hanging  down  like  a  pea 
from  the  floor.  Three  minutes  is  a  long  time  for  blood  to  flow, 
and  spurt  and  jet;  it  would  have  saturated  everything  around  there. 
I  tell  you  Herbert  Field  was  never  murdered  in  that  bank.  He 
may  have  been  foully  murdered,  and  that,  too,  by  George  Vander- 
pool,  but  never  in  that  bank.  To  explain  the  blood  on  the  wall, 
and  on  the  legs  of  the  desk  is  very  easy,  when  we  consider  that 
they  used  a  great  deal  of  red  ink,  and  how  common  a  thing  it  is 
when  we  dip  the  pen  into  the  ink  bottle  to  throw  off  a  drop  before 
writing.  If  that  body  was  carried  out  of  the  front  door  and  down 
those  stairs,  why  was  not  blood  found  in  front  of  the  bank,  as  well 
as  down  the  stairs  ?  I  am  glad,  for  Dr.  Wilcox's  reputation,  that 
the  witness  Blanchard  gave  the  explanation  of  that  blood  on  the 
stairs  that  he  did,  but  it  is  a  strong  commentary  on  human  weakness, 
that,  in  the  two  trials  before  this,  in  which  there  was  great  legal 
skill  and  accumen,  this  fact  which  explains  all  this  blood  was  not 
brought  out. 

In  regard  to  the  blood  on  the  stairs  leading  down  to  the  river, 
the  witness  Blanchard  gives  us  an  explanation  for  that,  by  saying 
that  he  carried  a  basket  of  fish  up  those  stairs  on  Tuesday  and  saw 
blood  and  serum  drip  from  his  bucket,  and  you  remember  that  no 
blood  was  seen  there  till  Wednesday.  But  the  counsel  on  the 
other  side  were  not  satisfied  with  this,  and  asked  the  witness  if  he 
had  ever  carried  up  any  fish  there  before,  when  he  said  that  he  had 
carrried  up  some  on  the  previous  Saturday.  ***** 

THE    FOUE    "  WITNESS  TEEE8  "  WHICH  SHOULD  POINT    TO    THE    "  COB- 
NEE  POST "    OP   GUILT,    DO   NOT    AGEEE. 

*  *  *  *  If  you  go  into  the  boundless  forest  and  seek  to  find 
the  line  that  the  government  has  surveyed  between  two  sections  of 
land,  you  seek  to  find  the  "  corner  post,"  knowing  that  it  is  the 
main  fact  upon  which  you  rely.  But  this  "corner  post,"  this 
"  main  fact,"  you  can  only  find  by  following  the  "  witness  trees,'* 
and  directions,  courses  and  distance  they  bear  from  the  corner  post. 
These  "  witness  trees  "  all  point  to  the  "  corner  post,"  the  main 
fact.  But  if  any  one  of  them  do  not  so  point,  you  are  in  doubt — 
there  is  something  wrong;  and  the  farther  you  go  in  the  search, 
following  their  guidance,  the  more  uncertain  you  are  of  the  true 
line.  Vanderpool,  Secor,  Dr.  Wilcox,  and  the  "  strange  boatman," 
are  the  four  witness  trees,  each  bearing  more  or  less  of  the  blazed 
evidences  of  guilt.  But  do  they  each  and  all  point  in  the  same 
20 


306  MODERN  JURY  TRIALS. 

direction  ?  Charles  Secor  found  a  human  hair  upon  that  bloody 
newspaper,  red  spots  upon  the  carpet  so  small  he  had  to  pin  them 
for  future  reference.  No  other  witness  saw  these  evidences  of 
guilt.  He  was  early  at  that  bank,  as  well  as  Vanderpool,  that 
Monday  morning,  with  his  horse  and  buggy.  It  was  five  o'clock. 
Where  had  he  been  ?  At  this  time  no  suspicion  was  aroused.  It  was 
not  even  known  that  Field  had  disappeared.  Secor  lived  but  two 
blocks  from  the  bank;  why  was  he  there  with  his  horse  and  buggy 
at  that  hour?  With  what  microscopic  vision  did  he  find  that 
single  human  hair,  those  minute  blood  spots  ?  That  hair,  those 
spots,  that  early  ride,  that  mission  to  the  bank,  are  all  "  marks  "  of 
guilt,  but  they  do  not  point  toward  the  prisoner. 

Dr.  Wilcox  roomed  over  the  bank.  He  was  also  up  very  early 
that  Monday  morning,  and  saw  Vanderpool  at  the  bank,  as  did 
Secor.  He  went  down  the  stairs  by  the  side  of  the  bank,  that 
morning,  and  avoided  the  blood  spots  by  walking  on  the  other  side. 
He  went  toward  the  river,  perhaps,  like  Lady  Macbeth,  looking  at 
his  hand,  and  crying  as  he  went,  "  Out,  damned  spot !  Out,  I  say  1 " 
He  slept  in  his  office  that  Sunday  night.  On  the  Wednesday 
following  he  was  under  the  bank  digging  for  blood  (?);  but 
when  others  came  to  dig,  hunting  for  the  signs  of  that  murder, 
he  hurries  to  a  widow's  house,  near  by,  and  asks  the  privilege 
of  sawing  her  wood;  said  he  wished  to  be  out  of  the  way  of  those 
people;  asked  her  if  she  supposed  Field  was  murdered  or  had  run 
away;  and  then,  when  conscience  made  him  coward  through  and 
through,  begged  piteously  to  be  let  out  by  her  back  door,  and  so 
escaped  to  the  woods.  His  confusion,  his  early  rising  that  Mon- 
day morning,  his  fear  of  those  innocent  blood  spots  on  the  stairs, 
his  terror  at  the  presence  of  his  fellow  beings  upder  the  bank 
digging,  sent  him,  like  Cain,  a  vagabond  upon  the  face  of  the  earth. 
All  these  things  are  "marks"  of  guilt,  but  they  do  not  point 
toward  the  prisoner. 

The  "  mysterious  boatman,"  who  was  he  ?  A  man  was  seen  that 
Sunday  night,  crouching  in  a  "  white  boat,"  as  he  paddled  down 
that  little  river  toward  the  lake  ?  He  avoided  other  boats,  he  was 
seen  of  witnesses;  but,  like  grim  Charon,  silently  he  paddled  on. 
Something  seemed  to  be  following  the  boat  as  though  attached  to 
it  in  the  water.  Was  he  ferrying  some  dead  body  down  the  river 
of  death?  Do  you  know?  Ten  days  later,  twelve  miles  off  the 
mouth  of  that  river,  another  strange  boatman  (or  the  same),  was 
seen  without  rudder,  oars  or  sail — famished,  gaunt  and  hungry — 
in  another  "white  boat"  (or  the  same).  A  schooner  seeks  to  aid 
him.  The  voice  of  its  captain  calls  to  him  in  kindness.  He  makes 


TRIAL  OF  VANDERPOOL.  307 

no  reply.  He  is  taken  aboard,  he  intentionally  capsizes  the  white 
boat,  and  when  the  schooner  bands  were  bidden  to  save  it,  he 
speaks  for  the  first  time,  "let  the  boat  go  to  h — 1,  I  have  had 
enough  of  it."  He  eats  ravenously,  refuses  to  be  landed  in  the 
state  of  Michigan;  denies  the  possession  of  monej,  but  is  seen 
counting  a  large  roll  of  bills  stealthily.  He  sleeps,  eats,  lives 
alone,  like  some  wild  beast,  avoiding  human  beings.  He  lands  at 
Detroit,  and  instantly  departs  for  Canada,  first  inquiring  his  way 
to  that  land  of  refuge.  Who  was  he?  I  do  not  know!  You  do 
not  know!  But  there  is  an  unbroken  line  of  guilt  (or  mystery) 
running  from  that  little  river  at  Manistee  out  into  the  lake,  around 
the  great  state  of  Michigan,  through  the  Straits  of  Mackinaw,  down 
through  lakes  Huron,  St.  Clair,  and  the  Detroit,  and  so  circling 
this  great  peninsula,  it  is  lost  in  Canada.  That  is  a  line  of  guilt, 
strange  as  an  old  tale,  mysterious  as  any  mythology,  but  certain, 
nevertheless — but  it  does  not  touch  the  prisoner. 

For  the  fourth  witness  tree,  you  have  the  prisoner,  Vanderpool. 
There  are  evidences  of  guilt  which  point  to  him.  There  are  strange, 
almost  unaccountable,  circumstances  which  seem  to  envelop  him. 
But,  just  because  circumstances  equally  strange  and  mysterious 
surround  these  other  three  persons,  you  cannot  say  which,  if  either, 
is  guilty.  If  either  of  them  was  on  trial,  you  would  have  the 
same  difficulty. 

Where,  then,  is  the  "corner  post"  of  guilt?  These  four  wit- 
ness trees  point  in  four  different  directions.  You  cannot  focus 

their  indications  upon  this  prisoner. 

******* 

He  then  gave  a  scathing  description  of  Conover,  Secor,  Ingram, 
Bullis  and  others  who  had  been  foremost  in  prosecuting  and  perse- 
cuting this  prisoner,  after  which  he  concluded  as  follows: 

And,  now,  gentlemen,  I  leave  this  case,  so  far  as  I  am  concerned, 
with  you;  my  responsibility  has  been  great,  yours  will  be  greater. 
I  cannot  lift  the  curtain  that  for  two  long  years  has  hidden  this 
mystery;  perhaps  it  will  never  be  lifted,  until  that  day  when  all 
things  are  made  plain,  and  the  puzzles  of  time  are  all  solved. 
Whether  Herbert  Field  is  alive  or  dead,  whether  George  Vander- 
pool killed  him  or  not,  I  do  not  know,  but  four  weeks  of  patient 
investigation  have  failed  to  show  either  a  death  or  murder.  It  is 
not  for  me  to  ask  of  you  mercy,  instead  of  justice;  for  here  as  I 
believe,  justice  will  be  a  verdict  which  shall  give  back  a  husband 
to  his  wife,  now  for  two  years  more  than  widowed.  No,  we  do 
not  ask  you  to  "  strain  the  quality  of  mercy;"  but  while  I  hold  up 


308  MODERN  JURY  TRIALS. 

to  you  the  law  and  evidence  in  this  case,  and  ask  by  the  very 
"letter  of  the  bond  "  an  acquittal,  I  also  point  you  to  this  wife  and 
ask  you  not  to  bring  upon  her  young  life  the  shadow  of  an  uncal- 
culated  eclipse.  I  tell  you  there  was  mystery,  not  death,  in  that 
little  bank  on  that  September  day.  Two  men  entered  it,  but  no 
human  eye  that  we  can  find  saw  either  leave  it.  Here  is  one  of 
them,  but  where  the  other  is,  or  how  he  left  it,  I  know  not.  Jus- 
tice demands  an  acquittal  at  your  hands.  What  I  have  said  is  of 
little  moment,  but  what  you  do  will  last  forever. 

Hon.  THOMAS  B.  CHURCH,  closing  for  the  People,  said: 

Gentlemen  of  the  jury — The  prisoner  at  the  bar  is  charged  with 
a  crime  which  is  not  only  contrary  to  the  laws  of  man,  but  to  the 
great  canon  of  the  Almighty,  "Thou  shalt  not  kill."  Counsel  may 
inveigh  against  witnesses  as  much  as  they  choose  ;  theorize,  mystify, 
and  speculate  as  they  will,  to  the  utmost  of  their  ability,  but  they 
cannot  get  away  from  the  cardinal  fact  that  stands  out  as  clear  as 
day — that  Herbert  Field  is  dead,  and  that  he  died  by  violence. 
We  live  in  a  singular  state  of  things  ;  if  there  is  anything  about  a 
crime  that  is  unusually  horrible,  strange  or  extraordinary,  it  seems 
the  public  taste  is  vitiated,  and  the  criminal  comes  to  the  bar  with 
all  the  appliances  for  excusing  or  covering  up  the  heinousness  of 
his  offense,  and  lionizing  the  offender.  Have  we  not  somthing  of 
this  here?  Why  should  the  case  of  mis  criminal  be  examined  with 
more  tenderness,  with  less  candor  or  scrutiny  than  that  of  any 
other?  *  *  *  * 

In  the  early  stages  of  the  cause,  we  talked  of  the  disappearance 
of  Herbert  Field  ;  we  occasionally  ventured  upon  the  phrase 
"  alleged  murder  ; "  that  is  all  over  now.  The  truth  is  no  longer 
to  be  disguised  or  obscured.  Field  was  murdered  ;  he  was  thrust 
out  of  his  young  and  blooming  life,  and  was  not  slain  by  casualty  ; 
he  was  murdered — murdered — murdered  !  And  where  ?  And  by 
whom?  Sometimes  the  place  and  the  criminal  expose  each  other. 
Let  us  first  consider  the  question,  Who  killed  him?  We  will  take 
all  the  circumstances  that  have  since  come  to  light,  and  will  now, 
a  posteriori,  as  the  logicians  say,  discover  the  murderer.  We  are 
no  longer  groping  ;  we  have  that  in  our  hands  which  will  shed  its 
light  on  the  mystery,  and  will,  by  inevitable  inference,  reveal  the 
criminal.  *  *  *  * 

Then,  was  there  a  forgery  committed  after  his  death — and  foi 
what  purpose — and  by  whom  ?  There  was  a  series  of  entries  on 
the  books  amounting,  as  I  read  them,  to  $3,360.  That,  as  I  under- 
stand it,  is  the  way  in  which  he  left  these  books  when  he  went  out 


TRIAL  OF  VANDERPOOL.  309 

into  the  darkness  of  death.  Are  they  correct  ?  There  is  one  thing 
to  show,  and  that  is  the  little  book  which  Hall  testified  was  kept 
by  his  friend  Field.  It  has  been  admitted  as  evidence,  and  it  con- 
tains contemporaneous  entries  of  drawing  and  deposit.  And  the 
whole  foots  up  just  $3,360.22,  with  which  he  has  credited  himself 
on  that  little  book.  Now,  part  is  taken  out  in  drafts,  and  part  in 
currency.  When  Dunham  comes  to  examine,  he  finds  $2,295  in  an 
envelope,  and  then,  from  across  the  lake  comes  the  word  that 
$1,060.22  lies  deposited  in  Chicago,  to  his  account.  This  makes 
$3,355,  and  leaves  a  difference  of  $5,  which  might  easily  be  the 
pocket  money  that  Mr.  Field  had  taken  from  his  own  funds.  *  *  * 

This  gold  Avas  in  Field's  pocket  late  on  Saturday  night.  It  was 
presumably  hi  his  pocket  on  Sunday  morning  when  he  left  his 
aunt's  and  the  next  that  was  seen  of  it  was  when  Conover  saw  it 
scattered  about  the  bottom  of  the  safe  on  Monday.  Gold  is  always 
kept  in  bags  or  boxes  ;  this  was  lying  loose.  Where  did  it  come 
from  ?  Rifled  from  the  pocket  of  Herbert  Field  as  he  lay  lifeless 
in  that  bank  on  Sunday,  and  afterward  found  hidden  away  in  the 
house  of  the  defendant.  Gentlemen,  I  have  asked  the  Judge  to 
charge  you  that  the  possession  of  the  private  property  of  a  person 
murdered  is  criminative  evidence  of  the  highest  degree.  If  he  who 
has  it  cannot  satisfactorily  explain  how  he  got  it,  the  law  presumes 
that  it  was  taken  in  the  perpetration  and  execution  of  crime.  *  * 

Then,  it  is  in  this  position  that  we  find  the  respondent — compel- 
led to  do  some  desperate  deed  to  save  his  position  in  society  and 
his  place  as  a  business  man.  To  prove  his  innocence  there  is  no 
way  but  to  show  an  alibi  for  Field.  *  *  *  * 

Now,  gentlemen,  eight  Bostonians  of  high  character  swore  posi- 
tively to  having  seen  Dr.  Parkman  after  the  hour  when  he  went 
into  the  medical  college  from  which  he  never  came  out  alive — and 
all  these  eight  knew  Dr.  Parkman,  and  one  of  them  swore  to  hav- 
ing bowed  to  him  and  to  receiving  a  bow  in  return.  Why,  who 
should  have  seen  Field  that  day,  if  he  was  alive  ?  His  most  inti- 
mate friends — not  simply  those  who  barely  knew  him — yet  not  one 
who  was  well  acquainted  with  him  ever  saw  him  after  that  fatal 


noon. 


*       *       *       * 


The  defense  have  introduced  certain  new  evidence,  and,  having 
done  so,  it  is  as  much  at  our  service  as  at  theirs.  If  it  becomes 
necessary  for  us  to  show  that  Vanderpool  had  an  accomplice  to 
help  him  remove  the  body,  we  are  entitled  to  use  the  evidence, 
which  is  new  to  us,  and  which  supplements  our  position.  But  it 
is  not  necessary  to  use  it.  I  have  made  some  calculation  on  the 
time  necessary  for  a  trip  to  the  piers  and  back.  The  defense  have 


310  MODERN  JURY  TRIALS. 

claimed  that  fifty-eight  minutes  were  needed,  if  a  body  weighted 
with  iron  was  dragged  at  the  end  of  the  boat.  I  will  let  them 
have  their  estimate,  but  I  will  tell  you  that  it  is  neither  necessary 
nor  possible  to  make  the  voyage  on  which  Coquillard  estimated. 
Stormy  as  the  surface  of  the  water  was  that  Sunday  night,  neither 
Vanderpool  nor  "the  man  in  the  boat"  could  have  gone  beyond 
the  Blanchard  property  on  the  voyage  toward  the  mouth  of  the 
river.  And  if  either  had  dropped  his  dreadful  burden  there,  it 
would,  by  the  inevitable  action  of  the  water,  have  just  as  certainly 
been  cast  outside  the  piers  as  if  it  had  been  taken  to  the  very  out- 
let. *  *  *  * 

Here  Mr.  Church  told  a  boat-story  which  he  had  picked  up  in  a 
law-book,  to  illustrate  the  unreliability  of  such  evidence  as  that 
which  was  brought  up  for  the  first  time  on  this  trial. 

The  defense  have  laid  great  stress  upon  the  testimony  of  John 
Blanchard  as  to  the  landing  at  the  bank  platform  with  fish.  No 
matter  how  much  fish  was  ever  carried  up  those  stairs,  the  blood 
that  was  found  there  was  indisputably  mammalian  blood,  and  was 
so  recognized  by  Dr.  Duffield  ;  so  was  the  blood  on  the  floor,  and 
that  is  not  disputed ;  so  was  the  blood  on  the  Manistee  Times, 
lying  in  the  desk  of  the  bank.  *  *  *  * 

The  little  dog  was  at  Vanderpool's  house  in  the  afternoon,  and 
was  running  uneasily  about.  But  where  was  he  at  noon  ?  At  Kala- 
mazoo,  Piper  testified  that  he  had  not  particularly  noticed  any  dog 
with  Vanderpool  when  Vanderpool  came  back  into  his  house  for  his 
bath.  Here  he  said  he  thought  the  dog  was  with  him.  But  Nun- 
gessner,  treading  close  on  the  heels  of  Ramsdell,  heard  a  dog  howl- 
ing in  the  bank.  What  does  this  mean  ?  When  a  dog  is  pinched 
or  suddenly  hurt  he  yelps,  he  does  not  howl.  That  howl  meant 
that  a  more  fearful,  terrifying  sight  was  before  his  eyes  than  he 
had  ever  yet  looked  upon.  And  Vanderpool  took  him  away  with 
him,  that  he  might  not  attract  the  attention  of  passers-by  by  his 
moaning.  And  in  the  evening,  remembering  the  silent  face  of  his 
dead  master,  he  wandered  restlessly  about — not  soothed  by  the 
presence  of  his  new  -mistress  even — and  mutely  appealed  to  the 
murderer  for  the  assistance  which  could  never  be  given  to  the 
victim.  *  *  *  * 

Gentlemen,  Mr.  Vanderpool  has  committed  this  murder.  It  is  a 
terrible  conclusion,  but  one  which  we  cannot  avoid.  If  we  must 
draw  this  inference,  it  is  as  a  duty  we  owe  to  the  people.  It  is 
against  the  presumption  of  the  law,  which  regards  him  as  innocent 
until  he  is  proven  guilty  ;  it  is  against  his  former  character,  poorly 


TRIAL  OP  VANDERPOOL.  311 

proven  as  it  is  ;  it  is  against  his  supposed  friendly  relations  with 
his  partner  Field.  But  it  is  not  the  less  a  possibility,  for  God 
only  knows  what  lies  under  the  exteriors  of  men,  respectable  and 
fair-spoken  as  they  may  seem.  Only  one  class  of  men  in  this 
country — the  priests  of  the  Catholic  Church — are  permitted  to 
hear  the  inmost  secrets  of  men's  minds,  and  their  lips  are  sealed. 
We  have  had  testimony  upon  Vanderpool's  reputation  ;  no  con- 
fessor has  come  forward  to  tell  us  of  his  character.  He  did  hold 
Field  in  double  trust — his  friend,  his  partner — and  those  facts 
should  have  "pled  like  angels,  trumpet-tongued,  against  the  deep 
damnation  of  his  taking  off."  But  he  was  not>  faithful  to  his 
charge ;  under  his  smooth  face  he  carried  hatred  and  a  bloody  pur- 
pose ;  to  every  appearance  friendly  and  upright,  he  was  but  a 

"  whited  sepulchre,  full  of  dead  men's  bones  and  all  uncleanliness." 
****** 

Gentlemen,  I  leave  this  case  in  your  hands,  in  the  hands  of  men 
who  will  not  that  the  acquisitions  of  industry  and  economy  be  torn 
from  them  by  robbery,  nor  that  the  term  of  their  natural  lives  be 
shortened  by  murder ;  but  who  will  that  the  least  wrong  done  in 
any  community  to  the  humblest  member  of  that  community  is  a 
wrong  done  to  the  State.  However  much  of  pleasantry  may  have 
seemed  to  you  to  have  entered  into  the  little  verbal  encounters 
between  the  counsel  in  the  case,  I  assure  you  that  this  noble  mem- 
ber of  the  profession  who  sits  beside  me  has  never  once  lost  sight 
of  his  duty  to  his  client,  and  that  I  have  not  once  forgotten  what 
I  owe  to  the  People  whom  I  represent.  My  own  associations  with 
the  cause  are  somewhat  remarkable.  At  the  first  trial  I  was 
crushed  by  the  loss  of  a  son,  and  I  told  the  jury  that  while  my  own 
affliction  led  me  to  pity  the  sorrowing  family  whose  home  had  been 
so  suddenly  and  terribly  overshadowed  by  this  great  crime,  that  it 
led  me  also  to  hope  for  the  safe  deliverence  of  this  young  man 
from  the  fearful  accusation  which  weighed  upon  him.  I  know  the 
consequences  of  conviction  ;  how  it  cuts  down  to  the  earth,  at  once 
and  forever,  the  bright  hopes  of  these  young  lives,  and  dooms  the 
prisoner  to  a  living  death.  But  the  actual  and  possible  conse- 
quences of  the  crime  are  dark  and  dreadful,  however  they  are 
viewed.  Herbert  Field  murdered,  his  aged  mother  is  driven  almost 
to  the  confines  of  insanity  ;  the  respondent  convicted,  the  young 
life  of  his  wife  is  crushed  and  darkened  forever.  *  *  *  * 

Gentlemen,  take  the  case  to  your  jury  room.  May  the  God  of 
mercy,  truth  and  justice  guide  your  deliberations — the  God  of 
mercy,  who  will  incline  your  hearts  to  pity  this  wretched  man  who 
sits  before  you,  charged  with  the  greatest  of  crimes — the  God  of 


312  MODERN  JURY  TRIALS. 

truth,  who  will  point  out  to  your  understandings  the  hidden  thinga 
of  this  mystery,  and  make  them  clear  to  your  vision — the  God  of 
justice,  who  will  bring  you  to  a  righteous  decision. 

The  jury  were  out  six  hours.  The  first  ballot  was  eleven  not 
guilty,  one  guilty  of  murder  in  the  second  degree.  At  this  point 
they  came  in  for  further  instructions,  and  were  charged  by  the 
court,  at  the  request  of  the  prisoner's  counsel,  that  they  must 
either  convict  of  murder  in  the  first  degree  or  acquit. 

The  scene  in  the  court  room  during  this  second  instruction  to  the 
jury  was  tragic.  Vanderpool's  wife  sat  with  hands  clenched  and 
blanched  cheeks,  and  when  the  jury  retired  the  second  time,  she 
broke  down  into  a  fit  of  terrified  sobbing  at  what  she  believed  the 
awful  suggestiveness  of  what  had  just  taken  place,  although  her 
counsel  assured  her  and  indicated  exactly  what  transpired  shortly 
afterwards. 

Fifteen  minutes  later  the  jury  announced  their  agreement.  The 
scene  in  the  court  room  was  impressive.  The  clerk  rose  and  asked 
the  jury  if  they  had  agreed  upon  their  verdict;  the  foreman 
answered,  "  Y^s  !"  The  clerk,  in  his  excitement,  forgot  to  prop- 
erly interrogate  them,  but  asked,  "  For  whom  do  you  find  ?  "  The 
reply  of  the  foreman  was  scarcely  audible,  from  suppressed  emo- 
tion, and  it  was  supposed  by  most  who  heard  to  be  "  Guilty."  He 
immediately  arose,  however,  and  said  plainly,  "  Not  guilty !" 
and  three  or  four  other  jurors  half  rose,  repeated  his  words,  and 
fell  back  into  their  seats.  Mrs.  Vanderpool,  with  a  shriek,  fell  for- 
ward into  her  husband's  arms. 

"  Can't  you  take  the  verdict  in  form  ?  "  asked  Mr.  Hughes,  impa- 
tiently, of  the  clerk.  "  Ask  whether  the  verdict  is  guilty  or  not 
guilty." 

This  was  done  at  last,  and  the  answer  came  back,  "  Not  guilty." 

And  so  say  you  all  ?  "  said  the  clerk. 

"Not  guilty!"  reiterated  every  juror. 

The  scene  which  followed  is  almost  indescribable;  a  tornado  of 
applause  followed  from  the  densely-packed  court  room,  which  the 
court  could  not  suppress.  The  building  shook;  the  prisoner  turned 
his  face  to  heaven,  closed  his  eyes,  and  lifted  his  hands,  as  though 
in  thanksgiving.  One  great,  brawny  juror,  with  a  piratical  mous- 
tache, whimpered  like  a  child.  Another,  a  sturdy  blacksmith, 
usually  ferocious  in  appearance,  wept.  Ladies  in  the  court  room 
crowded  into  the  bar  to  congratulate  the  prisoner  and  his  wife, 
who  in  turn  gave  to  their  counsel  the  warmest  assurances  of  their 
gratitude. 


TRIAL  OP  VANDERPOOL.  313 

And  so  the  great  trial  of  Yanderpool  was  over. 

As  an  incident  interesting  in  connection  with  this  trial,  the  fol- 
lowing editorial  clipped  from  the  columns  of  the  Grand  Rapids 
Daily  Democrat,  published  the  day  after  the  introduction  of  the 
testimony  concerning  the  mysterious  boatman,  may  prove  inter- 
esting : 

"  WHO  MURDERED  HERBERT  FIELD  ? 

"  We  don't  believe  in  spiritualism,  free  love,  or  witchcraft,  yet 
a  circumstance  in  regard  to  the  murder  of  Herbert  Field,  at  Manis- 
tee,  two  years  ago,  may  be  worth  relating,  since  the  introduction  of 
new  testimony  by  the  defense  in  the  Vanderpool  trial,  at  Hastings, 
bears  on  the  same  subject. 

"  A  few  days  before  the  trial  of  Vanderpool  at  Manistee,  on  the 
charge  of  murder,  the  writer  was  called  to  visit  a  gentleman  in 
this  city  in  regard  to  the  purchase  of  a  piece  of  property,  and  while 
there  witnessed  a  '  spiritual  manifestation,'  as  it  is  called,  which 
convinced  several  who  were  present  that  Vanderpool  was  innocent 
of  the  charge  of  murder. 

"  When  we  entered  the  house  we  were  somewhat  surprised  to 
meet  a  circle  of  believers  in  spiritualism,  while  one  of  the  number, 
a  lady,  was  just  going  into  a  'trance.'  Being  invited  to  a  seat,  we 
accepted,  with  the  purpose  of  seeing  the  'whole  entertainment.' 
The  lady  medium  appeared  to  have  no  control  over  herself,  her 
limbs  twitching  and  jerking,  her  eyes  being  closed,  while  the  mus- 
cles of  her  face  were  made  to  perform  violent  contortions,  and  pre- 
sented an  appearance  disagreeable  to  look  upon. 

"  Gradually  she  became  more  calm,  and  at  length  very  quiet.  A 
number  of  questions  were  asked,  which  the  woman  answered,  in  a 
deep,  masculine  voice,  evidently  to  the  satisfaction  of  all  present. 

"The  Manistee  murder  at  that  time  being  the  source  of  conver- 
sation in  high  and  low  circles,  one  of  the  number  asked  the  medium, 
'Did  Vanderpool  kill  Field?'  and  the  reply  was,  very  emphatically, 
'No.'  Further  inquiries  on  the  same  subject  were  made  and 
answered  promptly,  and  in  reply  to  the  question,  '  Can  you  describe 
the  person  who  killed  Field  ? '  She  answered,  '  Yes,'  and  then 
drew  a  picture  of  a  man,  of  which  the  person  picked  up  in  a  '  mys- 
terious boat '  off  Manistee  by  the  captain  of  the  schooner  Craio- 
ford,  and  described  in  the  trial  at  Hastings,  was  an  exact  counter- 
part. The  medium  further  stated  that  the  'myterious  man  had  an 
accomplice '  in  the  person  of  a  female,  who  was  minutely  described, 
and  who  received  a  portion  of  Field's  money.  Other  particulars  of 


314  MODERN  JURY  TRIALS. 

the  murder  were  touched  upon,  but  not  being  '  in  the  faith,'  we 
took  no  pains  to  remember  them,  and  probably  should  not  the 
event  above  but  for  the  fact  of  the  new  evidence  brought  out  at 
Hastings.  We  only  desire  to  repeat  that  we  have  no  faith  in 
sniritualism,  and  publish  the  above  circumstance  for  what  it  is 
worth,  only  adding  that  what  is  stated  is  true  in  every  particular, 
and  can  be  corroborated  by  persons  who  were  present." 


McFARLAND-RICHARDSON  CASE. 
Tried  at  New  York,  May,  1870. 

STATEMENT. 

1.  Albert  D.  Richardson  was  a  journalist,  a  staff  reporter,  and  late 
war   correspondent   of   the   New   York    Tribune;  a   man   known 
throughout  the  nation  as  a  pleasing  writer  of  considerable  promise. 

2.  Daniel  McFarland  was  a  graduate  of  Dartmouth  college:  a 
professor  of  chemistry,  logic  and  belles-lettres;  an  elocutionist,  and 
member  of  the  New  York  bar,  with  some  political  influence,  but 
slender  law  practice.     He  had  speculated  and  failed,  and  was  not 
possessed  of  much  property.     At  the  time  of  the  homicide  he  was 
about  fifty  ,years  of  age.     He  had  married  a  young  wife,  rather 
giddy,  though  quite  attractive,  who  bore  him  two  children.     Two 
years  prior  to  the  tragedy,  Mrs.  McFarland  had  applied,  in  Indiana, 
for  a  divorce;  but  there  was  no  record  produced  on  this  trial  of  the 
granting  of  her  petition.     Just  before  the  death  of  Richardson,  the 
Rev.  Henry  Ward    Beecher  and  Dr.  Frothingham  performed  a 
marriage  ceremony  between  Abbie  Sage  McFarland  and  Albert  D. 
Richardson,  at  the  Astor  House,  which  was  not  a  little  sensational, 
Mr.  Beecher  thanking  the  "  Divine  Father  for  what  these  two  had 
been  to  each  other."     Mr.  McFarland  having  no  notice,  or  service 
of  notice,  claimed  the  alleged  divorce  to  be  wholly  void. 

The  theory  of  the  defense  was  insanity,  caused  by  the  loss  of 
Mr.  McFarland's  wife  and  child  through  the  wiles  of  Richardson. 
The  People  sought  to  convict  of  murder  in  the  first  degree.  The 
trial  was  before  Recorder  Hackett.  District  attorney  Gavin  and 
Judge  Davis  appeared  for  the  state;  Hon.  John  Graham  and 
Elbridge  T.  Gerry  for  the  defense.  Mr.  Graham  closed  for  the 


McFARLAND-RICHARDSON  CASE.  316 

defense,  and,  added  to  his  general  talent,  was  the  ripe  experience 
of  four  similar  trials,  so  that  his  brief  and  argument  on  the  law  of 
insanity  is  one  of  the  fullest  and  most  complete  ever  written  or 
delivered  on  the  subject.  He  had  no  personal  pride  of  opinion  to 
advance;  wherever  rare  wisdom  was  to  be  had,  he  procured  and 
read  it;  the  Bible,  as  well  as  words  of  eminent  advocates  like 
Seward,  Stanton,  Brady,  Hale  and  judges  of  high  renown,  were  used 
with  a  power  and  skill,  seldom  surpassed  since  the  trial  of  Hastings. 
It  has  many  apt  quotations  of  distinguished  men,  made  effective  by 
one  orator.  In  this  respect,  the  argument  of  Mr.  Graham  is  the 
climax  of  a  thirty  days'  trial.  His  speech  was  animated  action. 
His  art  is  utter  self-oblivion  and  a  rigid  adherence  to  the  strong 
points  of  law  and  evidence.  He  assumed  nothing  until  proven, 
and  proved  that  thoroughness  with  strong  personal  belief  in  his 
case  was  effective.  His  frequent  use  of  pertinent  scripture  quota- 
tions, delivered  with  a  sacredness  always  appropriate,  gave  weight 
to  his  reasoning.  His  memory,  force  and  industry,  all  aid  in  his 
success.  His  remarks  are  condensed  from  one  hundred  and  twenty' 
eight  pages  to  a  short  story  of  the  case,  with  a  terse  argument,  and 
a  happy  combination  of  other  briefs  makes  it  fourfold  stronger. 

ARGUMENT  OP  MB.  JOHN  GRAHAM. 

MAY  IT  PLEASE  THE  COURT:  Gentlemen  of  the  jury,  How  con- 
soling must  be  this  day  to  this  afflicted,  sorrowing  and  heart- 
broken man!  He  is  at  last  where  he  has  no  cause  to  dread  to  be, 
before  a  jury  of  his  peers,  the  highest  social  privilege  guaranteed 
to  him  by  the  laws  of  his  country.  Within  his  bosom,  for  many  a 
dreary  hour,  he  has  carried  a  weight  of  anguish  likened  unto  which 
the  nether  mill-stone,  figuratively  speaking,  may  be  almost  said  to 
be  as  light  as  air.  Death,  stripped  of  the  obloquy  and  terrors  here 
sought  to  be  attached  to  it,  might  be  to  him  a  harbor  of  repose. 
Long  enough  has  he  endured  the  peltings  of  the  merciless  storm! 
Who  does  not  now  trust  that  he  may  find  an  asylum  in  your  jus- 
tice ?  Temper  it  with  mercy,  as  you  yourselves  expect  forgive- 
ness. 

To  you,  to  you,  my  fellow  men,  through  me,  his  humble  and 
undeserving  advocate,  he  turns  as  the  arbiters  of  his  worldly  hopes 
and  his  earthly  destiny.  In  him  are  united  the  wrongs  of  a  dis- 
honored husband,  an  injured,  an  outraged  father.  His  story  can. 
be  briefly  told.  "  He  has  loved  not  wisely,  but  too  well."  You 
have  heard  some  of  the  particulars  of  his  sad  career.  Have  they 
not  gone  to  the  very  depths  of  your  souls  ?  Have  you  not,  each 
one  of  you,  during  the  developments  of  this  unnatural  investiga- 


MODERN  JURY  TRIALS. 

tion,  asked  yourselves,  over  and  over  again,  the  question:  Could  I 
have  done  less  than  he  did,  and  might  I  not  have  done  more? 
Who  can  tell  the  capacity  of  the  human  mind  to  withstand  or  resist 
those  pressures  against  which  it  may  have  to  contend?.  Who  can 
make  over  the  work  of  Omnipotence  ?  Who  can  alter  or  reverse 
its  fiat  ?  If  we  turn  our  eyes  to  those  trackless,  unmeasured 
realms  of  space  which  abound  with  the  monuments  of  the  vastness, 
power  and  wisdom  of  the  Great  Author  of  all,  how  are  we  dizzied 
by  the  grandeur  of  the  contemplation,  and  shrivelled  by  a  sense  of 
our  own  littleness?  Which  of  us  could  be  vain  or  irreligious 
enough  to  question  or  seek  to  interfere  with  the  laws  which  regu- 
late the  movements  of  those  countless  systems,  compared  with 
which  our  own  sphere  is  as  a  speck,  and  with  which  it  has  not  any 
ascertainable  connection?  Who  can  check  the  light,  or  restrain 
the  heat,  which  issues  from  the  sun  ?  Who  can  return  to  the 
queen  of  night  her  silvery  brightness,  or  despoil  her  of  any  of  her 
appropriate  offices  ?  Who  can  appoint  the  time  for  the  blowing  of 
the  wind,  the  appearance  of  the  lightning,  or  the  advent  of  the 
rain  ?  This  is  not  within  the  scope  of  human  power.  These  are 
not  among  human  prerogatives. 

It  is  to  this  category  we  assign  the  human  mind.  It  is  the 
breath  of  the  Deity.  It  is  a  fire  of  his  kindling.  It  is  the  immor- 
tal soul  bound  on  its  way  to  eternity.  It  contains  the  elements 
communicated  to  it  from  that  source,  and  it  is  as  impracticable  for 
us  to  extinguish  it  altogether  as  to  create  it  anew  or  to  endow  it 
with  a  different  character.  There  is  a  point  up  to  which  its  opera- 
tions may  be  said  to  be  vicious  or  criminal.  Beyond  that  point  its 
action  is  suspended  for  all  secular  purposes,  leaving  its  possessor  an 
involuntary  agent  in  the  execution  and  infliction  of  Divine 
vengeance. 

What  is  the  allegation  of  this  prosecution?  Not,  may  it  please 
the  court,  and  you,  gentlemen  of  the  jury,  that  the  individual  who 
has  passed  to  his  grave  met  an  unmerited  doom;  not  that,  if  he 
sullied  the  marital  honor  of  his  neighbor,  he  did  not  disentitle  him- 
self to  live:  but  simply  this — that,  however  just  and  righteous  his 
reward,  he  received  it  at  the  hands  of  an  unauthorized  instrumen- 
tality. That  depends  upon  the  mental  condition  of  the  slayer  at 
the  time  of  the  commission  of  his  act.  It  is  this  consideration 
which  meets  you  at  the  threshold,  and  is  the  last  to  leave  you  at 
the  close  of  this  solemn  proceeding. 

Here  I  may  be  permitted  to  return  the  thanks  of  my  learned 
brother  and  myself  to  the  court,  for  the  amenity  we  have  experi- 
enced at  its  hands  from  the  opening  to  the  close  of  this  investiga- 


McFARLAND-RICHARDSON  CASE.  317 

tion.  Your  honor's  responsibility  has  been  great.  Tour  trust  has 
been  most  sacred.  Many  important  questions  have  arisen,  to  be 
decided  upon  the  spur  of  the  moment.  They  have  had  to  be  sum- 
marily disposed  of,  in  order  to  enable  the  wheels  of  this  trial  to 
keep  rolling  on.  However  much  we  may  have  differed  from  you 
during  this  trial,  so  far  as  my  associate  and  myself  are  concerned^ 
we  desire  to  make  this  public  acknowledgment  to  you,  and  to  ex- 
press our  conviction  that  every  decision  you  have  rendered  has  been 
prompted  by  humanity  of  motive,  by  purity  of  intention,  and  by  an 
unquestionable  spirit  of  impartiality.  To  you,  gentlemen  of  the 
jury,  our  obligations  are  overwhelming.  We  have  taxed  your 
patience  and  time  beyond  all  precedent.  We  know  not  how  to 
thank  you.  Your  sacrifices  have  been  great.  Remember  the  great 
moral,  as  well  as  social  duty  of  this  occasion.  In  later  life  it  may 
be  a  gratification  to  you  to  refer  to  the  incidents  of  this  trial- 
God  grant  that  you  may  be  spared  to  see  the  good  results,  which 
may  issue  from  your  action  on  this  solemn  occasion.  It  may  be 
that  the  satisfaction — as  you  turn  back  upon  this  occasion — which 
you  will  derive  from  its  recollection,  will  prove  to  you  more  or  less 
of  a  compensation  for  the  losses  you  have  been  compelled  to  sus- 
tain. If,  in  the  manner  of  either  my  associate  or  myself,  you  have 
discovered  aught  that  was  offensive  or  unpleasant  to  you,  in  the 
name  of  my  client,  let  me  ask  you  to  dismiss  it  from  your  memory. 
Remember,  that  it  is  the  law  of  humanity  to  err,  and  however 
numerous  the  errors  we  may  have  committed  in  your  presence, 
rather  credit  them,  if  I  may  so  ask  you,  to  an  over-sense  of  fidelity 
to  our  client. 

This  is  the  third  occasion  within  some  twelve  years  on  which, 
although  a  single  man  myself,  I  have  had  the  distinguished  honor 
conferred  upon  me  of  upholding  and  defending  the  marriage  rela- 
tion. Within  that  period  the  three  most  exciting  trials  have 
occurred  in  this  country  that  have  ever  occurred  in  it,  and  it  has 
been  my  distinguished  privilege  to  appear  in  every  one  of  them. 
Why  it  is,  when  practically  I  could  not  enter  into  the  sympathies 
of  such  a  relation,  I  have  been  selected  for  this  distinguished  office, 
I  cannot  divine,  unless  it  is  that  I  regard  marriage  as  a  sacrament, 
and  had  I  thought  less  of  it  I  might  probably  have  contracted  it 
before  now.  The  veneration  with  which  I  regard  it  is  well  known, 
and,  although  my  lot  in  life  is  not  suited  to  its  practical  advocacy, 
nevertheless,  so  far  as  my  theoretical  predilections  are  concerned, 
they  are  of  that  character  which  has  induced  my  selection  as  a 
counsel  to  maintain  the  sacred  ness  and  inviolability  of  the  relation, 
on  the  different  occasions  to  which  I  have  referred.  To  portray 


318  MODERN  JURY  TRIALS. 

the  tenderness  of  woman's  nature — to  do  justice  to  her  charms — 
to  exhibit  fairly  her  perfection — to  represent  her  as  she  is — has 
challenged  and  successfully  defied  the  greatest  imaginations, 
whether  exercised  through  the  pen  of  the  poet,  the  brush  of  the 
painter,  or  the  chisel  of  the  sculptor.  The  extreme  delicacy  and 
sensitiveness  of  her  constitution  unfit  her  for  those  masculine  con- 
tacts with  the  world,  which  are  adapted  to  the  sturdier  attributes 
of  man.  What  more  power  does  she  desire  ?  What  more  power 
can  she  have  than  she  already  exercises  ?  Her  power  is  unlimited 
in  forming  and  moulding  to  her  liking  a  husband's  disposition. 
The  potter  hath  not  more  power  over  the  clay  to  form  one  vessel 
unto  honor  and  another  unto  dishonor,  than  has  a  wife  over  the 
attributes  and  character  of  her  husband.  If  there  is  unhappiness 
in  the  domestic  circle,  can  she  not  do  much  to  dispel  it?  Poverty 
ceases  to  be  felt  amid  the  consolations  of  her  companionship,  and 
sorrow  disappears  in  the  presence  of  her  smiles. 

The  peculiar  virtues  to  be  exemplified  by  the  family  queen  are 
beautifully  stated  in  scripture — Prov.  xxxi.  10-31: 

Who  can  find  a  virtuous  woman?  for  her  price  is  far  above 
rubies. 

The  heart  of  her  husband  doth  safely  trust  in  her,  so  that  he 
shall  have  no  need  of  spoil. 

She  will  do  him  good  and  not  evil  all  the  days  of  her  life. 

She  seeketh  wool,  and  flax,  and  worketh  willingly  with  her 
hands. 

She  is  like  the  merchants'  ships ;  she  bringeth  her  food  from 
afar. 

She  riseth  also  while  it  is  yet  night,  and  giveth  meat  to  her 
household,  and  a  portion  to  her  maidens. 

She  considereth  a  field  and  buyeth  it  ;  with  the  fruit  of  her 
hands  she  planteth  a  vineyard. 

She  girdeth  her  loins  with  strength,  and  strengtheneth  her  arms. 

She  perceiveth  that  her  merchandise  is  good  ;  her  candle  goeth 
not  out  by  night. 

She  layeth  her  hands  to  the  spindle,  and  her  hands  hold  the 
distaff. 

She  stretcheth  out  her  hands  to  the  poor;  yea,  she  reacheth 
forth  her  hands  to  the  needy. 

She  is  not  afraid  of  the  snow  for  her  household;  for  all  her 
household  are  clothed  with  scarlet. 

She  maketh  herself  coverings  of  tapestry;  her  clothing  is  silk 
and  purple. 


McFARLAND-RICHARDSON  CASE.  319 

Her  husband  is  known  in  the  gates  when  he  sitteth  among  the 
elders  of  the  land. 

She  maketh  fine  linen  and  selleth  it;  and  delivereth  girdles  unto 
the  merchant. 

Strength  and  honor  are  her  clothing;  and  she  shall  rejoice  in 
time  to  come. 

She  openeth  her  mouth  with  wisdom;  and  in  her  tongue  is  the 
law  of  kindness. 

She  looketh  well  to  the  ways  of  her  household,  and  eateth  not 
the  bread  of  idleness. 

Her  children  arise  up,  and  call  her  blessed;  her  husband  also, 
and  he  praiseth  her. 

Many  daughters  have  done  virtuously,  but  thou  excellest  them 
all. 

Favor  is  deceitful  and  beauty  is  vain;  but  a  woman  that  feareth 
the  Lord,  she  shall  be  praised. 

Give  her  of  the  fruit  of  her  hands,  and  let  her  own  works  praise 
her  in  the  gates. 

There  are,  gentlemen  of  the  jury,  two  incidents  of  this  trial  that 
demand  notice  here.  I  do  not  on  this  occasion  mean  to  indulge  in 
any  undue  severity  in  reference  to  the  private  counsel  who  has 
appeared  in  this  prosecution.  He  is  to  take  no  part  in  the  argu- 
ment of  this  case  before  the  jury,  and  it  would  be  ungenerous  and 
unmanly  in  me,  now  that  he  has  virtually  retired  from  the  case,  to 
make  him  the  subject  of  any  bitter  assault  in  the  remarks  I  may 
utter  hereafter.  I  have  the  right,  however,  and  it  is  my  duty,  to 
refer  to  his  appearance  upon  this  occasion.  The  appearance  of 
that  gentleman  has  not  been  so  objectionable  as  his  extreme  tech- 
nicality, and  I  think  I  should  be  sustained  by  the  response  of 
every  juror  here,  if  he  could  give  it  to  me  when  I  called  upon  him 
for  it,  that  this  prosecution  has  partaken  altogether  too  much  of 
the  nature  and  character  of  a  private  proceeding.  There  are  some 
particular  parts  of  the  management  on  the  part  of  the  prosecution 
to  which  I  will  refer  in  a  few  moments,  which  will  show  you  more 
readily  the  verity  and  propriety  of  this  remark. 

The  other  incident,  to  which  I  desire  to  make  a  passing  allusion, 
is  this — and  I  do  not  propose  to  more  than  call  it  to  your  atten- 
tion, and  the  rather  because  I  wish  to  dissent  from  the. precedent 
which  has  been  attempted  to  be  established  upon  this  trial — in  a 
community  as  heterogeneous  as  ours,  where  there  is  so  large  a 
foreign  element  in  our  population,  discriminations  on  the  score  of 
nationality,  so  exceedingly  out  of  place  and  inappropriate  on  all 


320  MODERN  JURY  TRIALS. 

occasions,  are  particularly  so  when  exhibited  under  the  auspieet 
of  a  public  prosecution.  The  formation  of  the  jury  was  delayed 
one  day  in  this  matter,  by  the  extreme  captiousness  of  the  prose- 
cution. Three  competent  jurors  were  found,  two  of  them  belonged 
to  one  nation,  and  one  to  another,  and  yet,  for  some  cause  or  other, 
although  they  were  good  and  reputable  citizens,  the  People  of  this 
mighty  state  through  its  accredited  organ,  the  prosecutor  of  this 
county,  objected  to  their  sitting  upon  the  decision  of  this  indict- 
ment. In  our  state — and  this  is  an  anomaly — in  all  capital  cases, 
and  in  all  cases  involving  a  punishment  of  or  beyond  ten  years' 
imprisonment  in  a  state  prison,  the  prosecution  have  the  right  to 
exert  what  are  called  five  peremptory  challenges;  that  is,  the  right 
to  set  aside  a  juror  for  no  other  cause  than  that  they  are  not  will- 
ing to  accept  him. 

I  shall  ask  you,  gentlemen  of  the  jury,  to  carry  in  your  minds 
certain  principles  which  you  will  hear  me  hereafter,  more  or  less, 
amplify  in  some  suggestions  I  shall  make  to  the  court,  as  to  what  we 
suppose  to  be  the  law  the  court  should  lay  down  to  the  jury  for 
their  guidance  in  this  case.  This  is  a  case  of  murder  or  nothing. 
There  must  be  no  compromise  here.  If  Mr.  McFarland  is  guilty  at 
all,  he  is  guilty  of  murder;  and  the  juror  who  would  compromise 
him  into  the  state  prison  would  violate  his  oath  just  as  much,  as  if 
the  prisoner  were  guilty  of  murder  and  he  did  not  convict  him  of 
that  crime.  There  can  be  no  medium  verdict  here,  and  so  I  place 
this  man  before  the  jury.  The  prosecution  are  not,  by  a  species  of 
strategy,  to  fall  into  a  kind  of  inferior  conviction.  That  is  one  of 
the  shifts  of  diplomacy  sometimes  called  into  requisition  by  a  prose- 
cution. They  indict  a  man  for  murder,  intending  to  get  him  into 
the  state  prison,  and  then  they  exercise  their  humanity  by  saying, 
"We  do  not  press  the  case  against  him  for  a  conviction  of  murder; 
we  only  ask  a  conviction  of  manslaughter."  The  jury  are  often- 
times misled  in  that  way.  This  is  a  case  of  murder  or  nothing, 
and  so  I  will  put  it  to  you,  and  I  will  presently  show  you  that  the 
beloved  James  T.  Brady,  on  the  trial  of  Cole,  scorned  the  idea  of 
the  jury  convicting  his  client  of  manslaughter,  when  it  was  murder 
or  nothing;  and  that  they  ultimately,  on  that  intimation  from  him, 
rendered  a  verdict  of  acquittal.  A  compromise  is  a  violation  of 
your  oaths.  This  case  ought  to  be  looked  straight  in  the  face.  If 
Mr.  McFarland  is  responsible  for  his  act  at  all,  he  is  responsible  for 
the  highest  crime  known  to  the  law.  If  the  testimony  has  shielded 
him  from  a  conviction  of  that  offense,  he  is  entitled  to  a  clear  ver- 
dict of  acquittal  at  your  hands. 

Although  I  have  no  right  to  give  you  the  law,   because   that 


McFARLAND-RICHARDSON  CASE.  821 

comes  from  the  court,  yet  you  are  at  liberty  to  carry  in  your 
minds,  in  hearing  my  argument,  these  additional  principles.  If 
upon  the  whole  case,  you  entertain  a  reasonable  doubt  as  to 
whether  Mr.  McFarland  was  sane  or  insane  at  the  time  of  the 
shooting,  you  are  bound  to  resolve  that  doubt  in  nis  favor.  If  this 
case  is  so  balanced  that  you  cannot  tell  whether  he  was  sane  or 
insane  at  that  time,  you  are  bound  under  your  oaths  to  acquit  him, 
because  in  convicting  him  of  murder  you  sustain  this  indictment, 
which  charges  that  in  slaying  Albert  D.  Richardson,  the  prisoner 
was  moved  and  stimulated  by  the  instigation  of  the  devil.  A  man 
may  be  insane  as  to  one  man,  and  perfectly  sane  as  to  the  rest  of 
the  world.  A  man  can  be  deprived  of  his  mind  on  one  subject. 
A  man  can  be  mentally  deranged  in  reference  to  a  particular  man, 
or  a  particular  set  of  men.  So  far  as  he  act 9  within  the  limits  of 
his  derangement  he  is  not  accountable,  but  if  he  goes  outside  of 
those  limits,  and  attacks  the  rest  of  the  world,  he  draws  on  his 
head  the  same  accountability  as  if  he  was  perfectly  free  from  men- 
tal alienation. 

An  important  consideration  you  are  not  to  overlook  is — that 
human  science,  in  reference  to  the  mind,  is  limited  at  the  best. 
The  condition  of  the  human  mind  is  a  subject  of  doubt  in  itself. 
It  cannot  be  inspected,  and  even  where  derangement  is  known  to 
exist,  there  may  be  an  undue  limitation  of  it.  The  jury  are  conse- 
quently required  to  be  humane  and  liberal,  for  they  assume  to  pro- 
nounce upon  that  as  to  which  they  may  be  mistaken,  or  as  to  which 
they  can  judge  erroneously.  There  is  a  difference  among  medical 
men  as  to  whether  insanity  is  a  disease  of  the  soul,  or  a  disease  of 
the  body,  and  you  will  remember  that  if  you  hold  that  the  human 
mind  exists  through  the  perceptions — by  a  species  of  external 
action  upon  the  brain — you  seem  to  destroy  the  immortality  of  the 
soul  altogether.  There  are  three  theories  on  the  subject  of  insan- 
ity— the  psychological  theory,  of  those  who  insist  that  the  soul  is 
independent  of  the  body,  and  that  insanity  is  a  disease  of  the  soul; 
the  somatic  theory,  that  insanity  is  a  physical  disease;  and  the 
intermediate  theory,  of  those  who  advance  the  capacity  of  the  soui 
to  impart  disease  to  the  body,  and  the  capacity  of  the  body  to 
impart  disease  to  the  soul.  This  is  one  of  the  remarkable  mys- 
teries which  human  science  cannot  fathom,  and  as  to  which  it  can 
only  speculate.  It  will  be  for  you  to  exercise  your  judgments, 
under  your  oaths,  as  to  the  medical  testimony,  precisely  as  you 
shall  consider  most  consistent  with  reason. 

To  enable  you,  gentlemen  of  the  jury,  to  judge  how  strong  a 
feeling  is  aroused  by  the  compromise  of  a  husband's  honor,  let 
91 


322  MODERN  JURY  TRIALS. 

me  invite  your  attention  to  the  marriage  relation  as  exhibited  in 
Scripture.  Marriage  is  a  Divine  institution,  and  to  judge  of  it  by 
any  human  book  would  be  absurd.  It  would  be  idle  for  me  to 
read  you  a  human  book  to  show  how  strong  a  man  loved  his  wife, 
when  the  Bible,  which  speaks  from  the  Deity,  tells  you  what  mar- 
riage was  created  for,  and  what  feelings  the  Almighty  imparted  to 
it.  I  read  from  the  Scriptures  here  simply  as  I  would  read  from 
an  ordinary  book,  to  show  you  what  was  the  strength  of  this 
man's  feelings  when  invaded  and  outraged  by  the  man  whom  he  is 
charged  with  sending  to  his  grave.  When  Adam  was  presented 
with  woman,  formed  by  the  Almighty  from  one  of  his  ribs,  taken 
from  him  in  a  deep  sleep,  Adam  said,  "This  is  now  bone  of  my 
bone,  and  flesh  of  my  flesh;  she  shall  be  called  woman,  because  she 
was  taken  out  of  man.  Therefore  shall  a  man  leave  his  father  and 
his  mother,  and  shall  cleave  unto  his  wife,  and  they  shall  be  one 
flesh."  One  flesh  has  one  set  of  feelings.  There  is  a  perfect 
unanimity  of  feeling  in  one  flesh.  Hence,  you  observe  that  when 
man  and  wife  are  mated  they  are  the  same,  and  both  feel  the 
same.  An  outrage  to  one  is  an  outrage  to  the  other.  The  Xew 
Testament  contains  the  same  sentiment,  thus:  "Wherefore,  they 
are  no  more  twain,  but  one  flesh;  what,  therefore,  God  hath  joined 
together,  let  no  man  put  asunder."  This  furnishes  an  idea  of  how 
intensely  husband  and  wife  should  love  one  another.  They  are  to 
be  one  in  spirit,  as  they  are  one  in  body.  Their  hearts  are  to  beat 
in  unison.  It  may  be  that  they  do  not  reciprocate  one  another's 
love;  but  that  may  not  affect  the  feeling  of  whichever  of  the  two 
parties  has  the  appropriate  amount  of  love.  If  the  woman  does 
not  love  the  man,  but  the  man  loves  the  woman  with  all  his  soul, 
the  man's  feelings  are  just  as  strong  as  though  the  woman  returned 
his  attachment,  and  an  outrage  upon  those  feelings,  even  though 
his  attachment  is  unreturned,  is  just  as  serious  as  though  the  out- 
rage was  upon  a  marriage  relation,  where  the  hearts  of  husband 
and  wife  beat  in  unison. 

Let  me  now  read  to  you  some  verses  from  Proverbs,  which  were 
recited  by  the  beloved  James  T.  Brady  on  the  trial  of  Sickles  in 
Washington,  with  which  we  were  both  connected,  in  the  defense; 
because  the  view  they  held  was  that  you  cannot  understand  what 
marriage  is,  unless  you  go  to  the  source  from  which  it  emanated. 
There  is  but  one  source,  and  that  is  the  Bible. 

The  feelings  of  a  man  at  the  discovery  of  his  wife's  infidelity, 
and  the  doom  of  the  adulterer,  are  significantly  and  powerfully 
portrayed  in  these  verses: 


McFARLAND-RICHARDSON  CASE.  323 

Can  a  man  take  fire  in  his  bosom,  and  his  clothes  not  be 
burned  ? 

Can  one  go  upon  hot  coals  and  his  feet  not  be  burned? 

So  he  that  goeth  into  his  neighbor's  wife;  whosoever  toucheth 
her  shall  not  be  innocent. 

Men  do  not  despise  a  thief  if  he  steal  to  satisfy  his  soul  when  he 
is  hungry ; 

But  if  he  be  found,  he  shall  restore  seven  fold  ;  he  shall  give  all 
the  substance  of  his  house. 

But  whoso  committeth  adultery  with  a  woman  lacketh  under- 
standing ;  he  that  doeth  it  destroyeth  his  own  soul. 

A  wound  and  dishonor  shall  he  get ;  and  his  reproach  shall  not 
be  wiped  away. 

For  jealousy  is  the  rage  of  a  man  ;  therefore  he  will  not  spare 
in  the  day  of  vengeance. 

He  will  not  regard  any  ransom ;  neither  will  he  rest  content 
though  thou  givest  many  gifts. 

Those  who  dishonor  husbands  are  here  warned  of  their  doom. 
It  is  decreed  against  them  by  Heaven.  A  wound  and  dishonor 
shall  they  get,  and  husbands  will  not  spare  them  in  the  day  of 
vengeance.  This  destiny  is  certain.  The  wisdom  of  Solomon, 
which  was  inspired,  said  it,  and  so  it  must,  and  so  it  will  be,  until 
human  nature  is  formed  anew,  and  different  feelings  and  impulses 
are  bestowed  upon  us.  Jealousy,  which  defies  and  bears  down  all 
restraint,  whether  it  be  what  we  technically  call  insanity  or  not, 
is  akin  to  it.  It  enslaves  the  injured  husband,  and  vents  itself  in 
one  result,  which  seems  to  be  inevitable  and  unavoidable. 

Where  jealousy — what  the  Scripture  calls  jealousy — which  is 
what  we  call  insanity,  for  the  purposes  of  this  trial — takes  posses- 
sion of  a  man's  breast,  he  will  not  spare  in  the  day  of  vengeance  ; 
that  is,  he  cannot  spare  ;  for  the  Deity  did  not  make  man  strong 
enough  to  stand  a  provocation  like  that.  If  provoked,  the  end 
cannot  be  averted.  *  *  *  * 

A  vicious  will,  without  a  vicious  act,  says  Blackstone  (4  Bl. 
Com.,  21),  is  no  civil  crime.  So,  on  the  other  side,  an  unwarrant- 
able act,  without  a  vicious  will,  is  no  crime  at  all ;  so  that  to  con- 
stitute a  crime  against  human  laws,  there  must  be,  first,  a  vicious 
will,  and  secondly,  an  unlawful  act,  consequent  upon  such  vicious 
will.  If  there  be  a  doubt  about  the  act  of  killing,  all  will  concede 
that  the  prisoner  is  entitled  to  the  benefit  of  it ;  and  if  there  be 
any  doubt  about  the  will,  the  faculty  of  the  prisoner  to  discern 
between  right  and  wrong,  why  should  he  be  deprived  of  the  benefit 


324  MODERN  JURY  TRIALS. 

of  it,  when  both  the  act  and  the  will  are  necessary  to  make  out  th« 
crime  ?  The  same  writer  also  remarks,  that  where  there  is  a  defect 
of  understanding,  the  will  does  not  join  with  the  act ;  for  where 
there  is  no  discernment  there  is  no  choice,  and  where  there  is  no 
choice  there  can  be  no  act  of  the  will,  which  is  nothing  else  but  a 
determination  of  one's  choice  to  do,  or  abstain  from,  a  particular 
action.  He,  therefore,  that  has  no  understanding,  can  have  no  will 
to  guide  his  conduct.  I  am  not  controverting  the  legal  presump- 
tion in  favor  of  sanity,  until  the  contrary  appears.  I  am  not  deal, 
ing  with  legal  presumption  of  any  kind.  I  am  treating  of  doubts 
and  uncertainties  touching  guilt  or  innocence,  which  arise  upon  the 
trial  of  most  capital  offenses,  and  of  the  obligations  which  the  law 
imposes,  and  which  reason  and  humanity  demand,  that  such  doubts 
and  uncertainties  shall  be  removed  before  there  can  be  a  conviction, 
and  a  consequent  deprivation  of  life." 

Coke  says  :  "  When  a  person  of  sound  memory  and  discrimina- 
tion unlawfully  killeth  any  reasonable  creature  in  being,  and  under 
the  king's  peace,  with  malice  afore-thought,  express  or  implied." 
It  is  to  be  remarked  that  every  member  of  this  sentence  is  of  the 
weightiest  import  in  determining  the  constituents  of  the  crime. 
The  killing  must  have  been  effected  by  a  person  of  sound  memory 
and  discretion.  It  must  have  been  an  unlawful  killing  ;  that  which 
is  deprived  of  life  must  have  been  a  reasonable  creature  in  being, 
under  the  king's  peace  ;  and  the  killing  must  have  proceeded  from 
malice,  expressly  proved  or  such  as  the  law  will  imply,  which  is 
not  so  properly  spite  or  malevolence  to  the  deceased  as  any  evil 
design  in  general ;  the  dictate  of  "a  wicked,  depraved  and  malig- 
nant heart."  Every  one  of  these  things  must  have  existed,  in 
order  to  make  out  the  crime,  and  they  must  be  proved  or  presumed 
upon  the  trial  to  have  existed,  or  the  prisoner  is  to  be  acquitted. 
They  are  primarily  a  part  of  the  case  of  the  prosecution,  to  be 
established  to  the  satisfaction  of  the  jury  beyond  any  reasonable 
doubt.  The  law  presumes  malice  from  the  mere  act  of  killing, 
because  the  natural  and  probable  consequences  of  any  deliberate 
act  are  presumed  to  have  been  intended  by  the  author.  But  if  the 
proof  leaves  it  in  doubt  whether  the  act  was  intentional  or  acci- 
dental, if  the  scales  are  so  equally  balanced  that  the  jury  cannot 
safely  determine  the  question,  shall  not  the  prisoner  have  the 
benefit  of  the  doubt?  And  if  he  is  entitled  to  the  benefit  of  the 
doubt  in  regard  to  the  malicious  intent,  shall  he  not  be  entitled  to 
the  same  benefit  upon  the  question  of  his  sanity,  his  understand- 
ing? For,  if  he  was  without  reason  and  understanding  at  the 


McFARLAND-RICHARDSON  CASE.  325 

time,  the  act  was  not  his,  and  he  is  no  more  responsible  for  it  than 
he  would  be  for  the  act  of  another  man." 

This  is  the  law  of  Chief  Justice  Hale — that  no  man  can  commit 
a  crime  unless  he  has  the  control  of  his  will — and  our  court  of 
appeals,  as  will  be  seen  hereafter,  has  decided  that  frenzy  is  a 
ground  of  exculpation  from  the  consequences  of  an  act  done  under 
its  influence.  It  was  elementary  law  two  hundred  years  ago  that 
understanding  and  will  had  to  concur,  to  constitute  a  crime.  In 
the  McCann  case,  in  one  of  the  extracts  read  by  me  from  the  opin- 
ion of  Justice  Brown,  we  have  the  proposition  as  laid  down  by 
Blackstone,  and  I  would  say  that  no  one  has  ever  been  able  to  state 
a  legal  proposition  with  a  clearness  and  beauty  equal  to  Blackstone. 
An  unwarrantable  act  without  a  vicious  will,  is  no  crime  at  all,  and 
a  vicious  will  without  a  vicious  act,  is  equally  guiltless.  Our  statu- 
tory crime  of  murder  in  the  first  degree  must  have,  first,  a  vicious 
will,  and  secondly,  an  unlawful  act  consequent  upon  it.  "Where 
there  is  no  discernment  there  is  no  choice,  and  where  there  is  no 
choice,  there  can  be  no  act  of  the  will,  which  is  nothing  else  but  a 
determination  of  one's  choice  to  do,  or  abstain  from,  a  particular 
action." 

We  ask  the  court  to  charge  the  following  propositions  to  the 
jury:  Even  if  the  evidence  as  to  the  insanity  of  the  defendant 
should  leave  it  in  doubt  as  to  whether  he  was  insane  at  the  time  of 
the  commission  of  the  alleged  act,  if  it  also  leaves  in  doubt  his 
sanity  at  that  time,  he  is  entitled  to  an  acquittal.  Though  the  evi- 
dence may  leave  the  defense  of  insanity  in  doubt,  if  upon  the  whole 
evidence  in  the  case  the  jury  entertain  a  reasonable  doubt  as  to  the 
perfect  sanity  of  the  defendant  at  the  time  of  the  commission  of 
the  alleged  act,  they  are  bound  to  acquit  him.  If  the  jury  cannot 
say  beyond  a  doubt  that  the  defendant  was  sane  at  the  time  of  the 
commission  of  the  alleged  act,  or  cannot  say  whether,  at  that  time, 
he  was  sane  or  insane,  they  are  bound  to  acquit  him.  If  the  jury 
entertain  a  reasonable  doubt  upon  all  the  evidence  in  the  case  as  to 
the  guilt  or  innocence  of  the  defendant  of  the  crime  alleged  against 
him,  he  is  entitled  'to  an  acquittal. 

In  England,  the  lives  of  two  of  their  sovereigns  have  been 
attempted  within  this  century,  and  in  both  cases  insanity  was 
recognized  and  admitted  as  a  complete  defense.  We  all  know  that 
whatever  difference  there  may  be  in  the  loyalty  of  an  Englishman 
to  his  government,  he  is  tenacious  of  his  affection  for  his  sovereign, 
and  all  Englishmen  are  anxious  and  sensitive  when  the  safety  of 
the  sovereign  is  interfered  with  or  invaded.  In  this  case,  when 
these  feelings  and  prejudices  must  have  increased  the  horror  of  the 


326  MODERN  JURY  TRIALS. 

crime,  Hadfield  was  acquitted  upon  the  simple  ground  of  insanity. 
He  armed  himself  with  a  pistol,  entered  the  theatre,  and  stayed 
there  thirty  or  forty  minutes,  apparently  as  sane  as  any  man  in  it, 
and  when  the  king  stepped  forward  to  the  front  of  the  box  to  make 
his  acknowledgments  to  his  subjects,  as  they  were  cheering  him.  he 
stood  up,  took  deliberate  aim,  and  fired  several  shots  at  the  king. 
He  was  arrested,  tried,  and  acquitted  upon  the  ground  of  insanity. 
So  that  in  that  country  the  fullest  scope  is  given  to  this  plea,  even 
where  the  sovereign  is  concerned,  and  the  defense  always  prevails 
there  in  proper  cases. 

It  is  a  principle  of  the  common  law  of  the  land — the  greatest 
system  of  human  wisdom  ever  given  out  to  the  world — that  the 
law  does  not  excuse  a  man  who  makes  himself  drunk  to  slay  his 
neighbor.  The  law  recognizes  no  right  in  him  to  set  up  his  immo- 
rality against  his  criminality;  but  if  his  neighbor  makes  him  drunk 
by  force  or  contrivance,  and  he  should  commit  a  crime  while  in 
that  state  of  intoxication,  the  principle  would  not  apply.  In  the 
first  case  it  is  self-imposed  madness,  and  in  the  second  it  is  a  forced 
or  compelled  madness. 

Does  not  this  analogy  hold  good  here  ?  Who  made  this  man 
drunk?  Richardson.  And  he  slew  him.  And  how  can  it  be 
claimed  that  this  man  is  to  pay,  for  the  deed  which  Richardson  con- 
strained, the  forfeit  of  his  life.  That 'which  goes  into  a  man's 
mouth,  and  disorders  his  brain,  is  as  nothing  to  that  which  goes 
into  his  mind  and  maddens  his  intellect.  Who  reduced  this  pris- 
oner to  a  condition  in  which  he  was  bereft  of  consciousness  and 
will  ?  Who  mixed  the  contents  of  and  compelled  him  to  drain  the 
bitter  cup  from  which  he  drank  for  years  ?  Was  it  not  this  which 
caused  his  derangement  ? 

The  man  who  lays  a  slow  match  to  the  happiness  of  his  neighbor 
and  maddens  and  frenzies  him,  ought  to  be  compelled  to  take  the 
consequences  of  what  he  thus  brings  about.  The  prisoner  was  the 
victim,  not  the  cause  of  his  frenzy.  We  want  the  court  and  jury 
to  remember  that  this  man  did  not  madden  himself,  but  that  he 
was  maddened  by  the  combination,  unveiled  and  exhibited  by  the 
evidence  on  this  trial.  The  suddenness  of  the  explosion  is  no  argu- 
ment against  it,  for  sudden  insanity  exhibits  itself  in  delirium  in 
sickness.  Sometimes  it  disappears  almost  as  suddenly  as  it  came, 
yet  an  act  done  under  its  influence  is  guiltless. 

In  this  connection,  I  desire  to  refer  to  a  case  once  very  familiar 
in  this  county,  where  the  defense  was  conducted  by  my  own 
brother,  who  offered  on  the  trial  no  medical  evidence  in  support  of 
the  allegation  of  insanity.  It  is  the  case  of  Amelia  Norman. 


McFARLAND  RICHARDSON  CASE.  327 

The  prisoner  was  indicted  in  this  court  for  an  assault  with  intent 
to  kill.  She  had  been  led  astray  by  a  man,  who  deserted  her  after 
he  had  ruined  her,  and  appeared  determined  to  turn  her  over  to  a 
fate  almost  inevitably  awaiting  a  fallen  woman.  She  was  willing 
to  give  him  up,  but  wanted  some  assistance  from  him  to  start  her 
in  respectable  life.  He  refused  her  this,  although  she  tried  to 
soften  him  in  every  way. 

She  surrendered  herself  to  absolute  despair;  and  in  a  moment  of 
frenzy,  as  he  was  entering  a  public  hotel  in  this  city,  first  appealed 
to  him  in  piteous  tones,  and  finding  him  inexorable,  plunged  a  knife 
in  him,  almost  taking  his  life.  This  was  the  act  for  which  she  was 
indicted,  and  the  trial  took  place  at  the  January  term  of  this  court, 
1844.  After  a  trial  of  four  days,  she  was  acquitted,  and  when 
the  verdict  was  rendered  the  welkin  rang  with  the  cheers  of  the 
populace,  loud  enough  to  be  heard  blocks  off  from  the  court-room. 

She  was  taken  in  hand  by  a  celebrated  authoress,  who  heard  of 
her  wrongs  and  stood  by  her  until  she  passed  through  that  ordeal. 
There  was  no  medical  evidence  as  to  the  condition  of  her  mind 
when  she  committed  the  act,  but,  as  in  the  Sickles  case,  the  jury 
were  left  to  tell  what  it  was  from  their  own  knowledge  of  human 
nature.  The  recorder,  in  his  charge  to  the  jury,  made  use  of  this 
remark,  as  reported  in  one  of  the  newspapers  of  the  day,  referring 
to  the  defense  of  insanity  which  had  been  set  up:  "That  the  best 
rule  for  the  government  of  the  minds  of  the  jury  was  their  own 
common  sense  view  of  the  case,"  meaning  that  that  was  the  cor- 
rect mode  of  passing  upon  the  case  under  the  legal  instructions 
received  from  the  court. 

We  did  not  introduce  any  evidence  of  insanity  in  the  case  of 
Daniel  E.  Sickles,  because  we  thought  it  unnecessary,  as  he  slew 
the  seducer  of  his  wife  as  he  stood  waving  his  handkerchief,  with 
adulterous  intent,  in  the  open  street.  We  went  to  the  jury  upon 
the  common  sense  of  the  matter.  We  knew  that  no  man  could  be 
anything  else  than  frenzied  under  a  provocation  like  that. 

You  do  not  want  a  doctor  to  tell  you  how  you  would  feel,  if,  on 
returning  home,  you  found  your  house  had  fallen,  burying  its 
inmates  beneath  its  ruins.  How  much  more  harrowing  the  ruin 
when,  instead  of  the  material  household,  it  is  the  moral  household 
that  falls  !  How  much  greater  the  calamity  !  In  this  case  of 
Amelia  Norman,  the  recorder  left  it  to  the  jury,  as  men  of  common 
sense,  to  say  whether,  when  she  found  her  seducer  was  inexorable 
in  his  determination  to  entail  upon  her  lasting  ruin,  he  had  not 
himself  provoked  that  moment  of  insanity  in  which  she  plunged 
her  knife  into  his  bosom. 


32$  MODERN  JURY  TRIALS. 

I  will  now  refer  to  the  case  of  The  People  v.  Kleim,  and  here 
again  we  desire  to  return  our  thanks  to  Judge  Edmonds  for  the 
great  interest  he  has  taken  in  this  case.  Kleim's  case  will  be  found 
reported  in  I  Edmond's  Reports  (Select  Cases),  page  13.. 

This  prisoner  was  tried  at  the  oyer  and  terminer  in  this  county 
for  March,  1845.  He  was  indicted  for  a  most  barbarous  homicide, 
in  setting  fire  to  the  building  in  which  the  deceased  (a  woman) 
resided,  and  forcibly  detaining  her  therein,  at  the  same  time  inflict- 
ing wounds  upon  her  with  a  sharp  instrument,  by  means  whereof 
she  was  suffocated  and  injured  so  as  to  cause  her  death.  The  trial 
occurred  before  Judge  Edmonds  and  two  aldermen,  and  resulted  in 
his  acquittal  on  the  ground  of  insanity.  The  disease  appeared  to 
be  monomania  or  melancholia.  In  this  case,  moral  insanity  was 
introduced  into  and  firmly  established  as  a  part  of  the  jurispru- 
dence of  this  state.  The  charge  of  the  judge  to  the  jury  was  as 
luminous,  as  accurate  conception  and  clear  language  could  make  it. 

In  one  place  he  said  :  "  If  some  controlling  disease  was  in  truth 
the  acting  power  within  him  which  he  could  not  resist,  or  if  he 
had  not  a  sufficient  use  of  his  reason  to  control  the  passions  which 
prompted  the  act  complained  of,  he  is  not  responsible."  In  another 
part  of  his  charge  he  said  :  "  And  it  must  be  borne  in  mind  that 
the  moral  as  well  as  the  intellectual  faculties  may  be  so  disordered 
by  the  disease  as  to  deprive  the  mind  of  its  controlling  and  direct- 
ing power."  In  another  part  of  his  charge  he  said  :  "  In  order 
then  to  constitute  a  crime,  a  man  must  have  memory  and  intelli- 
gence to  know  that  the  act  he  is  about  to  commit  is  wrong,  to 
remember  and  understand  that  if  he  commits  the  act  he  will  be 
subject  to  punishment,  and  reason  and  will  to  enable  him  to  com- 
pare and  choose  between  the  supposed  advantage  or  gratification 
to  be  obtained  by  the  criminal  act,  and  the  immunity  from  punish- 
ment which  he  will  secure  by  abstaining  from  it.  If,  on  the  other 
hand,  he  have  not  intelligence  and  capacity  enough  to  have  a  crim- 
inal intent  and  purpose,  and  if  his  moral  or  intellectual  powers  are 
so  deficient  that  he  has  not  sufficient  will,  conscience,  or  control- 
ling mental  power,  or  if  through  the  overwhelming  violence  of 
mental  disease  his  intellectual  power  is  for  the  time  obliterated, 
he  is  not  a  responsible  moral  agent,  and  is  not  punishable  for 
criminal  acts." 

If  your  honor  will  go  over  this  subject,  you  will  find  that  the 
doctors  are  right  in  saying  that  the  test  of  intellectual  insanity  is 
absurd  when  applied  to  perceptional,  emotional,  or  volitional 
insanity.  You  will  be  kind  enough  to  observe  this,  and  I  hope 
that  in  this  case  we  will  have  from  the  court,  in  its  charge  to  the 


McFARLAND-RlCHARDSON  CASE.  329 

jury,  some  such  originality  on  the  law  of  insanity  as  was  had  from 
Judge  Edmonds  in  the  Kleim  case.  He  was  the  first  judge  who 
planted  this  doctrine  of  moral  insanity  in  this  state,  and  he  did 
it  because  when  "the  right  and  wrong  test"  was  first  applied 
to  defenses  of  insanity,  it  was  not  discovered  or  understood  that 
the  perceptions,  emotions,  or  will  could  be  diseased,  as  distinct 
from  the  intellect. 

I  desire  now  to  call  attention  to  the  case  of  Freeman  v.  The 
People,  4  Demo's  Reports,  9.  The  prisoner  had  been  sent  to  the 
state  prison,  at  Auburn,  for  horse  stealing.  He  was  probably  inno- 
cent, and,  on  his  liberation,  deeming  that  he  was  entitled  to  be 
paid  for  his  labor  during  his  term  of  imprisonment  (five  years),  he 
endeavored  to  commence  suit  against  different  individuals  to  obtain 
compensation.  Not  succeeding  in  this,  he  concluded  that  he  must 
commence  killing  with  that  view,  and  accordingly  commenced  with 
the  family  of  Mr.  Van  Nest,  who  resided  some  four  miles  from 
Auburn.  He  killed  four  persons,  and  seriously  wounded  one. 

He  was  indicted  for  the  homicides  at  the  Cayuga  oyer  and 
terminer.  The  fearful  character  of  his  crimes  (as  they  were 
believed  to  be)  rendered  his  conviction  a  foregone  conclusion.  The 
trial  occurred  in  July,  1846,  and  resulted  in  a  conviction  of  murder 
on  one  indictment.  He  was  defended,  as  a  matter  of  charity  and 
humanity,  by  the  Hon.  William  H.  Seward.  Many  will  remember 
the  bitter  feeling  against  the  prisoner  existing  in  our  own  commu- 
nity. He  was  a  negro,  and  his  victims  were  whites.  Even  against 
his  counsel  prejudice  uttered  itself,  because  of  the  color  of  the 
slayer  and  slain.  The  defense  was  that  he  was  an  idiot,  or  insane. 

The  conviction  was  carried,  on  writ  of  error,  to  the  supreme 
court,  where  the  judgment  of  death  was  reversed,  and  a  new  trial 
granted.  Pending  the  new  trial  (in  August,  1847),  the  prisoner 
died.  An  examination  of  his  brain  after  death  showed  disease, 
proving  that  the  condition  of  the  brain  is  not  to  be  reached  when 
a  man  is  alive,  and  proving  his  unaccountability  before  the  com- 
mission of  his  act.  An  honest  jury  had,  mistakenly,  pronounced 
him  sane,  realizing  the  strength  of  public  feeling  against  the 
defense  of  insanity. 

Beardsley,  J.,  who  delivered  the  opinion  of  the  court,  construed 
our  statute  as  to  unaccountability  for  a  criminal  act  committed  in 
a  state  of  insanity,  and  held  that  the  words  "no  act  done  by  a 
person  in  a  state  of  insanity  can  be  punished  as  an  offense  "  referred 
to  a  state  of  insanity  "  in  reference  to  such  act."  He  rather  con- 
demns the  submission  of  the  test  of  right  and  wrong  in  the  abstract, 
and  says  that  "the  insanity  must  be  such  as  to  deprive  the  party 


330  MODERN  JURY  TRIALS. 

charged  with  crime  of  the  use  of  reason  in  regard  to  the  act  done." 
Partial  insanity,  where  it  covers  the  act  done,  is  fully  vindicated 
by  this  able  jurist,  who  claims  the  fullest  irresponsibility  for  an 
insane  act.  He  illustrates  this  by  showing  that  a  man,  partially 
deranged,  does  not  necessarily  commit  an  insane  act.  It  is  only 
where  his  deed  is  the  result  of  the  derangement.  The  importance 
he  attached  to  the  insanity  of  an  act  is  visible  in  the  remark,  "the 
act,  in  my  judgment,  must  be  an  insane  act,  and  not  merely  the  act 
of  an  insane  man."  It  will  be  observed  how  applicable  that  prin- 
ciple is  to  this  case.  If  the  jury  believe  that  the  shooting  of  Rich- 
ardson by  Mcfarland,  on  the  afternoon  of  November  25th,  1869, 
was  an  insane  act,  the  prisoner  is  not  responsible  for  it,  and  though 
it  would  not  necessarily  follow  because  the  prisoner  was  insane  on 
some  subjects,  that  he  was  insane  as  to  that  particular  act,  yet  if 
he  was  insane  as  to  that  act  and  sane  on  other  subjects,  that  would 
not  deprive  him  of  his  right  to  irresponsibility. 

I  now  refer  to  the  case  of  Cole,  who  was  twice  tried  at  Albany, 
I  think,  in  1869.  On  the  first  trial  before  Justice  Ingraham,  the 
jury  disagreed.  On  the  second  trial,  before  Justice  Hogeboom,  he 
was  acquitted.  I  cite  the  case  for  some  of  the  principles  contained 
in  Judge  Hogeboom's  charge  to  the  jury,  as  reported  in  7  Abbott's 
Practice  Reports  (new  series),  page  321.  As  the  court  will  remem- 
ber, Cole  was  indicted  for  the  homicide  of  one  Hiscock,  once  a 
member  of  Assembly  in  this  State.  Hiscock  seduced  the  wife  of 
Cole,  who  was  an  officer  in  the  army  of  the  United  States  during 
the  war,  and  some  days  before  he  met  Hiscock  at  Stanwix  Hal^ 
Albany,  his  wife  had  communicated  to  him  the  fact  of  her  dis- 
honor. He  met  him,  and  drawing  a  pistol,  shot  him,  and  the  ques- 
tion was  whether  the  presence  of  Hiscock  rendered  him  irresponsi- 
ble for  his  act  at  the  time  he  shot  him — whether  the  operation  of 
the  presence  of  Hiscock  upon  his  mind  was  such  as  to  frenzy  him, 
and  to  render  him  unaccountable  for  what  he  did.  Judge  Hoge- 
boom, in  one  part  of  his  charge,  says  :  "  The  confessions,  or  alleged 
confessions,  of  the  wife  do  not  prove  it.  They  were  not  admitted 
for  such  a  purpose,  and  are  not  to  have  that  effect.  Their  intro- 
duction was  permitted,  not  as  furnishing  evidence  of  the  facts 
themselves,  but  as  communications  made  to  the  husband,  and 
which  were  calculated  more  or  less  to  operate  upon  his  mind,  and 
influence  his  conduct,  and  to  enable  you,  in  the  light  of  subsequent 
events,  to  judge  how  far  they  did  so  operate,  and  to  determine  to 
what  extent  the  knowledge  or  information  of  these  facts  was  cal- 
culated to  explain  and  to  mitigate,  or  to  justify  the  homicide  sub- 
sequently committed.  As  interpreting  the  prisoner's  subsequent 


McFAIlLAND-RICHAKDSON  CASE.  331 

conduct,  as  throwing  light  upon  the  state  of  his  mind,  they  are 
admissible  and  proper  to  be  considered."  Again,  he  says  :  "  In 
this  case  the  adulterer — if  adulterer  he  was — was  not  detected  by 
the  husband  in  the  actual  commission  of  his  crime,  nor  under  cir- 
cumstances from  which  its  then  very  recent  perpetration,  so  far  as 
the  evidence  discloses,  could  have  been  fairly  inferred.  The  period 
of  adultery — if  adultery  there  was — was  long  since  passed.  The 
knowledge  or  information  of  its  commission  had  been  communi- 
cated to  the  prisoner  several  days,  at  least  two  or  three  days  before, 
and  a  sufficient  time,  in  the  judgment  of  the  law,  had  elapsed  for 
the  passions  to  cool,  and  for  reason  so  far  to  regain  her  undisputed 
or  real  sway  as  to  forbid  individual  vengeance,  and  to  pronounce 
the  act  of  premeditated  killing — if  such  it  was — the  crime  of 
murder. 

"  True  it  is,  as  I  have  already  informed  you,  if,  notwithstanding 
this  lapse  of  time,  the  crushing  weight  of  this  domestic  tragedy 
had  driven  the  prisoner's  mind  to  absolute  distraction,  and  dethroned 
the  reason  of  the  husband,  he  is  permitted  to  find  immunity  from 
punishment  in  the  mental  alienation  with  which  he  was  thus  over- 
whelmed." 

As  regards  this  prisoner,  it  would  seem  that  his  desertion  by  this 
woman,  and  her  almost  notorious  cohabitation  with  Richardson 
from  the  period  of  her  desertion  to  the  time  of  the  shooting  in 
question,  are  not  the  only  maddening  causes  we  have  to  rely  on, 
but  that  he  was  principally  maddened  by  the  reflection  that  they 
still  had  possession  of  his  youngest  son,  and  that,  if  they  carried 
out  their  programme  in  reference  to  that  son,  they  would  transfer 
him  from  his  natural  to  his  artificial  parent,  Richardson,  and  would 
remove  from  him  the  name  of  his  natural  father,  and  put  upon 
him  the  name  of  a  father  chosen  by  this  wife.  It  was  the  distrac- 
tion consequent  upon  the  inability  to  discover  whether  they  would 
not  place  this  son  beyond  his  father's  reach  altogether,  which 
revived  and  reanimated  the  previous  causes,  and  gave  them  fresh- 
ness, as  though  they  had  just  occurred,  notwithstanding  they  had 
occurred  some  two  or  three  years  before. 

Mr.  Brady — whose  name  can  never  be  mentioned  by  any  one 
without  the  most  melancholy  recollections,  that  we  ever  lost  him — 
nor  without  the  most  pleasurable  recollections,  that  he  ever  should 
have  existed — used  this  language,  in  relation  to  that  portion  of  the 
charge  to  the  jury  in  which  the  judge  intimated  to  them  that,  if 
the  facts  warranted,  they  could  return  a  verdict  of  "manslaugh- 
ter "  against  his  client :  "  With  reference  to  what  has  been  said 
by  the  court,  upon  the  question  of  finding  the  accused  guilty  of 


332  MODERN  JURY  TRIALS. 

4  manslaughter,'  I  desire  to  say  on  behalf  of  the  prisoner,  that,  in 
the  judgment  of  his  counsel,  there  is  no  rational  or  possible  view 
by  which  the  offense  can  be  demonstrated  'manslaughter,'  and  that 
the  prisoner  declines  to  accept  the  offer  of  that  sympathy  that 
would  induce  a  verdict  for  that  offense,  and  would  rather  die  than 
be  sent  to  the  state  prison." 

The  jury  retired,  returned  to  the  court  for  further  instructions, 
and  then  retired  again.  "Subsequently,"  for  I  read  from  the 
report,  "they  came  into  court,  and  the  foreman  stated  they  found 
the  prisoner  to  have  been  sane  at  the  moment  before  and  the 
moment  after  the  killing;  but  they  were  in  doubt  as  to  his  sanity 
on  the  instant  of  the  homicide.  The  judge  charged  the  jury  that 
they  must  give  the  prisoner  the  benefit  of  the  doubt,  if  they  had 
such  rational  doubt,  founded  upon  the  evidence,  and  could  believe 
such  doubt  to  be  well  founded  upon  such  a  condition  of  the  case 
as  was  presented  by  this  statement  of  the  jury.  The  jury  ren- 
dered a  verdict  of  '  not  guilty.' " 

The  jury  in  the  Cole  case  were  instructed  that  if  he  was  sane 
immediately  before  and  immediately  after  the  shooting  of  Hiscock, 
nevertheless  that  he  was  entitled  to  the  benefit,  and  -was  within  the 
meaning  of  our  statute  as  to  insanity,  if  he  was  insane  at  the 
very  point  of  time  (of  which  they  were  to  be  the  judges)  of 
shooting  Hiscock — that  that  would  exonerate  him  from  the  conse- 
quences of  the  act  preferred  against  him  as  murder  in  the  first 
degree.  Judge  Hogeboom  delivered  this  instruction  to  the  jury 
which  we  ask  to  have  repeated  in  this  case,  as  to  the  immunity 
resulting  from  a  recent  or  sudden  cause,  operating  upon  the  mind 
of  Cole  :  "If  the  jury  believe  that,  at  the  very  time  of  the  com- 
mission of  the  act  alleged  against  him,  from  causes  operating  for  a 
considerable  length  of  time  beforehand,  or  recently  or  suddenly 
occurring,  the  defendant  was  mentally  unconscious  of  the  nature 
of  the  act  in  which  he  was  engaged,  he  was  and  is  legally  irrespon- 
sible for  it." 

The  jury  can  hardly  fail  to  believe  that  when  the  deceased 
entered  the  Tribune  office  he  did  not  expect  to  see  the  defendant, 
nor  the  defendant  him,  for  there  is  no  evidence  to  show  that  he 
anticipated  meeting  Richardson  there.  On  the  contrary,  if  he  had 
any  purpose,  it  must  have  been  to  see  Mr.  Sinclair,  for  he  was 
there  in  the  morning  inquiring  for  Mr.  Sinclair,  and  if  he  had  seen 
him  that  interview  might  have  allayed  his  distraction,  and  he 
would  not  have  gone  again  unconsciously  into  that  office  as  he  did. 
There  is  not  only  no  evidence  that  in  the  afternoon  Mr.  McFar- 
land  expected  to  find  Richardson  in  the  Tribune  office,  but  there  ia 


McFARLAND-RICHARDSON  CASE.  333 

no  evidence  that  the  inmates  of  that  office  expected  him  there  at 
the  time.  My  solution  of  the  case  is  this,  that  whenever  Richard- 
son met  McFarland  before,  McFarland  could  and  did  control  him- 
self, and  went  out  of  his  way;  and  that  on  this  particular  occasion, 
he  encountered  him  in  his  insane  mood,  and  when  he  was  entirely 
beyond  the  power  of  self-control.  I  mean  to  argue  from  the  facts, 
that,  on  other  occasions,  McFarland  was  rational,  and  controlled 
himself,  but  that  that  retributive  justice,  which  has  prescribed  the 
fate  of  adulterers,  directed  Richardson  on  this  occasion  into  con- 
tact with  him  when  he  was  in  that  demented  condition  which  ren- 
dered him  an  involuntary  instrument  in  the  execution  of  Divine 
or  Heavenly  vengeance.  I  mean  to  argue  that  he  did  not  expect 
to  see  the  deceased  when  he  entered  that  office;  but  that,  at  the 
sudden  appearance  of  the  destroyer  of  his  domestic  peace,  the 
memory  of  his  great  wrongs  rushed  with  overwhelming  force  upon 
him,  and  placed  him  under  the  influence  of  that  ungovernable 
frenzy  in  which  he  committed  the  act.  Justice  Hogeboom  says, 
that  when  a  person's  faculties  are  for  a  time  unsettled,  and  insanity 
enthroned  in  their  place,  he  is  not  responsible  for  his  acts. 

In  Willis  v.  The  People,  32  N.  Y.,  the  great  intellect  of  Chief 
Justice  Denio  remarked,  "  that  if  the  prisoner,  when  he  killed  the 
deceased,  was  in  such  a  state  of  mind  as  to  know  that  the  deed 
was  unlawful  and  morally  wrong,  he  was  responsible,  and  that 
otherwise  he  was  not." 

Here  is  a  case  which  can  well  be  understood.  "  Morally  wrong," 
are  words  that  men  of  science  can  deal  with.  Many  things  are 
contrary  to  law  which  are  not  opposed  to  morality.  This  restricts 
the  ability  to  judge  between  right  and  wrong  to  the  capacity  to 
judge  between  what  is  morally  right  and  wrong.  Should  this  court 
advance  to  this  jury  the  " right  and  wrong  test,"  it  is  important 
that  the  ability  of  the  prisoner  to  discriminate  between  what  is 
"right  and  wrong,"  should  be  qualified  by  the  word  "morally,"  so 
as  to  constitute  an  ability  to  judge  between  what  is  morally  "right 
and  wrong."  Let  it  be  understood,  "morally  wrong,"  for  upon 
a  proper  interpretation  of  those  terms  depends  an  important  issue. 
To  submit  the  "  right  and  wrong  test "  in  the  abstract,  as  it  has 
been  said,  without  the  qualification  of  an  ability  to  judge  between 
right  and  wrong  in  relation  to  the  particular  act  charged,  would 
seem  to  be  monstrous,  and  to  be  hardly  less  irrational  with  that 
qualification.  The  word  "moral"  or  "morally"  makes  it  more 
reasonable.  It  is  wrong  to  disobey  a  corporation  ordinance  forbid- 
ding the  putting  of  ashes  on  the  sidewalk,  though  it  cannot  wel! 
be  morally  wrong.  Sufficient  intelligence  to  know  that  the  viola- 


334  MODERN  JURY  TRIALS. 

tion  of  such  an  ordinance  was  wrong  would  not,  or  might  not,  b« 
sufficient  to  discriminate  between  what  was  "morally  right  and 
wrong,"  There  is  nothing  in  respect  for,  or  the  violation  of,  such 
an  ordinance,  one  way  or  the  other,  or  very  little,  to  indicate 
whether  a  man  is  sane  or  insane,  or  to  enable  an  inference  to  be 
drawn  as  to  his  capacity  to  distinguish  between  "  moral  right  and 
wrong."  To  put  such  a  test  to  a  jury  as  the  ability  to  judge 
between  "  right  and  wrong,"  terms  in  a  certain  sense  predicable  of 
obedience  to  or  disobedience  of  such  an  ordinance,  cannot  be 
claimed  to  be  the  proper  standard. 

I  shall  refer  now  to  the  case  of  Mr.  Sickles,  which  occurred  in 
the  city  of  Washington,  in  the  District  of  Columbia,  in  the  year 
1859;  and  when  I  refer  to  it  I  call  from  their  graves  the  illustrious 
counsel  with  whom  I  had  the  honor  to  co-operate  on  that  mem- 
orable occasion,  to  give  to  me  the  benefit  of  their  eloquent  tongues, 
AS  I  stand  here,  trying  to  save  this  injured  man  from  the  peril 
which  hangs  over  him.  We  trust  they  are  in  that  sphere  where 
happiness  is  neither  measured  nor  limited.  They  have  left  behind 
them  noble  records  and  noble  utterances,  which,  -when  they  come 
to  be  quoted  before  this  jury,  will  reach  their  hearts  with  a  pene- 
trating power  that  never  can  be  attained  by  eloquence  of  mine. 
Mr.  Sickles  was  tried  for  killing  Philip  Barton  Key  in  the  city  of 
Washington.  According  to  the  testimony,  Key  had  been  consid- 
ered by  Mr.  Sickles  a  reliable  personal  friend,  and  as  such  had  been 
admitted  to  intimacy  with  his  wife.  It  was  also  shown  by  the  tes- 
timony that  he  was  under  strong  obligations  to  Mr.  Sickles;  but  he 
took  advantage  of  the  kindness  and  consideration  with  which  he 
was  treated,  and  debauched  his  wife.  It  so  happened  that  he  was 
around  Mr.  Sickles  house  shortly  after  the  wife  had  made  a  con- 
fession of  her  shame  to  her  husband,  waving  his  pocket-handker- 
chief as  an  adulterous  signal,  and  as  his  bad  fortune  would  have 
it — and  as  Richardson's  bad  fortune  would  have  it — he  ran  upon 
his  death  when  he  little  expected  it.  Oh,  how  just  that  retribu- 
tion !  How  well  would  libertines  do  to  consider,  when  they  plan 
their  moral  demolitions,  that  before  they  reach  the  goal  of  their 
ambition  they  may  be  intercepted  in  their  pursuits  as  these  men 
were!  The  evening  before  the  fatal  Sunday,  the  wife  of  Mr.  Sickles 
had  made  a  confession  to  her  husband,  and  he  was  standing  by  the 
window  when  he  saw  Key  pass  by  giving  the  adulterous  signal, 
whereupon  he  rushed  out  in  a  state  of  frenzy,  and  slew  the 
deceased,  giving  him  three  wounds  with  a  loaded  pistol — and  the 
jury  would  have  sustained  him  if  he  had  given  him  three  hundred. 


McFARLAND-RICHABDSON  CASE.  335 

He  was  determined  to  do  the  thing  right,  and  the  jury  sustained 
him  in  it. 

The  prosecution  claimed  that  it  was  a  case  of  "  remorseless 
revenge,"  and  an  attempt  to  add  mutilation  to  murder.  The  jury, 
at  the  close  of  a  trial  occupying  over  four  weeks,  acquitted  the 
defendant  after  an  absence  and  a  deliberation  of  about  an  hour 
and  a  quarter.  On  that  occasion  two  propositions  were  laid 
down  under  the  auspices  of  the  eminent  counsel,  with  whom  I  had 
the  honor  to  be  associated.  One  was,  that  the  man  who  debauched 
the  wife  of  his  friend  earned  his  death,  and  got  it  meritedly;  and 
the  other,  that  the  husband  could  not  have  held  back  his  hand 
from  slaying  him,  if  he  had  tried.  Mr.  Stanton  joined  in  and 
approved  of  these  propositions,  and  so  did  Mr.  Brady.  There  was 
no  summing  up,  but  merely  an  argument  to  the  court  for  "  instruc- 
tions" to  the  jury.  The  court  granted  the  instructions  to  the  jury 
contained  in  the  two  following  "prayers"  (among  others),  as  asked 
by  the  defense:  "If,  from  the  whole  evidence,  the  jury  believe 
that  Sickles  committed  the  act,  but  at  the  time  of  doing  so  was 
under  the  influence  of  a  diseased  mind,  and  was  really  unconscious 
that  he  was  committing  a  crime,  he  is  not,  in  law,  guilty  of  mur- 
der. If  the  jury  believe  that,  from  any  predisposing  cause, 
Sickles'  mind  was  impaired,  and  at  the  time  of  killing  Key  he 
became  or  was  mentally  incapable  of  governing  himself  in  refer- 
ence to  Key  as  the  debaucher  of  his  wife,  and  at  the  time  of  his  com- 
mitting said  act  was,  by  reason  of  such  cause  unconscious  that  he 
was  committing  a  crime  as  to  said  Key,  he  is  not  guilty  of  any 
offense  whatever." 

The  question  was  not  how  long  it  had  taken  Mr.  Sickles  to  reach 
the  condition  of  mind  in  which  he  was — how  long  the  cause  had 
been  working  to  produce  that  state  of  mind.  His  condition  was 
produced  in  an  instant,  and  was  engendered  by  the  appearance  of 
the  man  who  had  debauched  his  wife.  Let  me  read  to  the  jury  an 
extract  from  the  most  eloquent  argument  of  the  late  Edwin  M. 
Stanton,  better  known  as  the  great  War  Minister  of  modern  times. 
He  it  was  who  directed  the  energies  of  this  great  nation  during  the 
civil  war  in  which  we  were  recently  engaged.  However  individ- 
uals may  judge  his  character,  it  seems  to  be  generally  conceded 
that  he  is  more  entitled  to  gratitude  for  the  successful  issue  of  that 
gigantic  civil  struggle,  than  any  other  person  connected  with  that 
strife. 

"What,  then,  is  the  act  of  adultery?  It  cannot  be  limited  to  a 
fleeting  moment  of  time.  That  would  be  a  mockery;  for  then  the 


236  MODERN  JURY  TRIALS. 

a.lulterer  would  ever  escape."  We  know  that  the  adulterer  haa 
chances,  whenever  he  comes  in  contact  with  the  object  of  his  lust. 
It  is  only  a  mere  matter  of  meeting.  If  man  and  woman  once 
commit  adultery,  the  frequency  of  the  adulterous  act  depends  on 
the  frequency  with  which  they  meet.  It  is  always  adultery.  "But 
law  and  reason  mock  not  human  nature  with  any  such  absurdity. 
The  act  of  adultery,  like  the  act  of  murder,  is  supposed  to  include 
every  proximate  act  in  furtherance  of,  and  as  a  means  to,  the  con- 
summation of  a  wife's  pollution.  This  is  an  established  principle 
in  American  and  English  law,  established  from  the  time  of  Lord 
Stowell,  as  will  be  hereafter  shown.  If  the  adulterer  hire  a  house, 
furnish  it,  provide  a  bed  in  it  for  such  a  purpose,  and  if  he  be 
accustomed,  day  by  day,  week  by  week,  and  month  by  month,  to 
entice  her  from  her  husband's  house  to  tramp  with  him  through 
the  streets  to  that  den  of  shame,  it  is  an  act  of  adultery,  and  is  the 
most  appalling  one  that  is  recorded  in  the  annals  of  shame."  Yes, 
but  this  case  transcends  it.  Richardson  hired  a  room,  and  put  his 
bed — the  craven  libertine — so  near  the  wall  which  divided  him 
from  the  room  in  which  this  man  and  wife  slept,  that  he  could  hear 
them  even  breathe.  If  he  had  had  any  decency  in  his  composition, 
he  would  not  have  done  this.  He  placed  himself  where  he  could  hear 
every  movement  they  made,  and  control  the  movements  of  the  wife 
completely.  "  If,  moreover,  he  has  grown  so  bold  as  to  take  the 
child  of  the  injured  husband,  his  little  daughter,  by  the  hand,  to 
separate  her  from  her  mother,  to  take  the  child  to  the  house  of  a 
mutual  friend  while  he  leads  the  mother  to  the  guilty  den,  it  pre- 
sents a  case  surpassing  all  that  has  been  written  of  cold,  villainous, 
remorseless  lust."  That  does  not  for  one  instant  compare  with  the 
wicked  conduct  of  this  Richardson,  for  he  kidnapped  this  poor 
man's  child,  that  he  might  carry  on  the  adultery  with  her  mother. 
He  could  not  control  her  until  he  could  control  the  child.  "If  this 
be  not  the  culminating  point  of  adulterous  depravity,  how  much 
farther  could  it  go  ?  There  is  one  point  beyond.  The  wretched 
mother,  the  ruined  wife,  has  not  yet  plunged  into  the  horrible,  the 
revolting  condition,  to  which  she  is  rapidly  hurrying,  and  which  is 
already  yawning  before  her.  Shall  not  that  mother  be  saved  from 
that  ?  And  how  shall  it  be  done  ?  When  a  man  has  obtained 
such  a  power  over  another  man's  wife  that  he  can  not  only  entice 
her  from  her  husband's  house,  but  separate  her  from  her  child  for 
the  purpose  of  guilt,  it  shows  that  by  some  means  he  has  acquired 
such  an  unholy  mastery  over  that  woman's  body  and  soul  that  there 
is  no  chance  of  saving  her  while  he  lives,  and  the  only  hope  of  her 
salvation  is  that  God's  swift  vengeance  shall  overtake  him.  The 


McFARLAND-RICHARDSON  CASE.  337 

sacred  glow  of  well-placed  domestic  affection,  no  man  knows  better 
than  your  honor,  grows  brighter  and  brighter  as  years  advance, 
and  the  faithful  couple  whose  hands  were  joined  in  holy  wedlock 
in  the  morning  of  youth  find  their  hearts  drawn  closer  to  each  other 
as  they  descend  the  hill  of  life  to  '  sleep  together  at  its  foot.'  But 
lawless  love  is  short-lived  as  it  is  criminal;  and  the  neighbor's  wife, 
so  guiltily  pursued,  by  trampling  down  every  human  feeling  and 
divine  law,  is  speedily  supplanted  by  some  new  object,  and  then  the 
wretched  victim  is  soon  cast  off,  and  swept  through  a  miserable 
life  and  a  horrible  death  to  the  gates  of  hell — unless  a  husband's 
arm  shall  save  her.  Who,  seeing  this  thing,  would  not  exclaim  to 
the  unhappy  husband,  *  Hasten,  hasten,  hasten  to  save  the  mother 
of  your  child,  although  she  be  lost  as  a  wife.  Rescue  her  from  the 
horrid  adulterer;  and  may  the  Lord,  who  watches  over  the  home 
and  the  family,  guide  the  bullet  and  direct  the  stroke.'  And  when 
she  is  delivered,  who  would  not  reckon  the  salvation  of  that  young 
mother  cheaply  purchased  by  the  adulterer's  blood — aye,  by  the 
blood  of  a  score  of  adulterers  ?  The  death  of  Key  was  a  cheap 
sacrifice  to  save  one  mother  from  that  horrible  fate  which,  on  that 
Sabbath  day,  hung  over  this  prisoner's  wife,  and  the  mother  of  his 
child."  Thus  you  see,  gentlemen  of  the  jury,  that  this  great  man 
raised  his  hand  and  prayed  that  the  Almighty  would  lend  Himself 
to  vengeance  upon  the  adulterer,  by  nerving  the  arm  and  directing 
the  bullet  of  the  injured  husband. 

The  following  is  the  peroration  of  Mr.  Brady's  final  remarks  to 
the  court  on  the  "prayers  for  instructions:" 

"And  I  will  be  permitted  to  say,  whatever  consequences  may 
result  from  the  declaration,  that  in  view  of  all  that  has  transpired 
in  the  city  of  Washington,  to  whose  citizens  on  this  jury  Sickles 
commits  his  life,  his  character,  all  that  is  to  elevate  or  to  keep  him 
in  existence  (for  in  our  entire  confidence  in  the  integrity  and  judg- 
ment of  your  honor  and  this  jury,  we  are  convinced  that  no  harm 
can  come  to  Sickles  out  of  this  trial);  in  view  also  of  the  relations 
of  Mrs.  Sickles  toward  him  before  he  came  to  this  city;  in  view  of 
what  he  knew  of  her,  of  the  extending  of  this  shame  from  the 
mother  to  the  child,  which  we  suppose  the  evidence  fixes  on  Key, 
Sickles  might  have  gone  anywhere  else  in  the  world  but  to  New 
York,  if  he  had  not  resented  that  indignity.  He  could  never  have 
returned  to  the  city  of  New  York  and  been  accepted  for  one 

moment  among  any  of  his  former  friends!" 

******* 

In   John  Manning's  case,  the    prisoner  was  indicted   in    Surrey, 


338  MODERN  JURY  TRIADS. 

England,  for  murder,  for  the  killing  of  a  man,  and  pleaded  no! 
guilty.  The  jury,  at  the  assizes,  found  that  the  said  Manning  found 
the  person  killed  committing  adultery  with  his  wife,  in  the  very 
act,  and  slung  a  jointed  stool  at  him,  and  with  the  same  killed  him; 
and  resolved  by  the  whole  court  that  this  was  but  manslaughter; 
and  Manning  had  his  clergy  at  the  bar,  and  was  burned  in  the 
hand,  and  the  court  directed  the  executioner  to  burn  him  gently, 
because  there  could  not  be  greater  provocation  than  this. 

This  has  been  the  law  in  this  state  since  1823;  and  I  allude  to  it 
.to  prove  how  correct,  legally,  the  estimate  is  we  place  upon  the 
value  of  the  marital  relation.  The  court  remarked  to  the  jury  that 
it  was  for  them,  under  all  the  circumstances,  to  say  whether  "  the 
crime  charged  upon  the  prisoner  was  murder  or  manslaughter,  or 
justifiable  homicide;  and  observed,  if  the  jury  were  of  opinion  that 
the  prisoner  committed  the  act  while  the  deceased  was  in  criminal 
intercourse  with  his  wife,  it  would  not  be  murder,  or  even  man- 
slaughter, but  would  be  justifiable  homicide,  se  defendo.  Her  con- 
sent would  be  of  no  avail  to  increase  or  extenuate  the  crime,  if  in 
the  husband's  presence.**  Under  this  law,  this  husband  had  a 
right  to  avenge  the  betrayal  of  his  wife:  2  Wheeler's  Crim.  Cases, 
page  47. 

I  repeat,  there  is  no  proof  that  Richardson  was  expected  at  the 
Tribune  office,  nor,  as  I  have  already  suggested,  that  when  Mr. 
McFarland  went  there,  he  expected  to  find  him  there,  or  to  have 
him  come  in  after  he  got  there,  or  that  he  had  any  suspicion  at  all 
«r  had  any  right  to  indulge  a  suspicion,  that  Richardson  would  be 
on  those  premises  that  afternoon.  If  that  of  itself  is  not  sufficient 
to  rebut  the  idea  of  premeditation  on  the  part  of  Mr.  McFarland, 
is  it  not  clear  that,  if  he  was  perfectly  sane,  and  had  wanted  to  kill 
Richardson,  he  would  have  selected  a  more  auspicious  spot  than  he 
did?  If  he  went  into  the  Tribune  office,  nerved  to  slay  Richard- 
son as  a  matter  of  previous  determination,  it  is  folly  to  say  that 
when  Richardson  met  him  on  previous  occasions  and  put  his  eye 
upon  him,  he  quailed  ;  for  a  braver,  more  chivalric  man  than 
Daniel  McFarland,  if  that  be  the  fact,  never  lived.  For  a  sane 
man  to  go  into  the  lion's  den  to  slay  his  adversary,  where  he  was 
physically  so  disproportioned  to  the  physical  power  of  the  estab- 
lishment, as  Daniel  McFarland  was  in  the  present  instance,  strikes 
one  as  so  incredible,  that  it  has  only  to  be  stated  to  be  rejected  by 
the  jury.  When  a  man  gets  even  with  a  wrong-doer,  or  means  to 
get  even  with  a  wrong-doer,  he  takes  him  at  a  disadvantage;  and 
if  Mr.  McFarland  in  this  occurrence  did  knowingly  give  Richard- 
son all  the  advantages  they  say  he  did,  a  braver  man  never  drew 


McFARLAND-RICHARDSON  CASE.  339 

the  breath  of  life.  It  seems  absurd  to  us  that  he  would  walk  into 
that  establishment,  pistol  in  hand,  expecting  to  encounter  Richard- 
son, when  the  chances  were  that  his  pistol  might  have  missed  fire, 
and  he  would  have  been  stamped  to  death  by  the  physical  force  of 
the  inmates.  We  submit,  therefore,  if  you  need  any  evidence  as 
a  starting-point  to  satisfy  you  that  the  defendant  must  have  been 
out  of  his  mind  when  he  entered  the  Tribune  office,  that  it  is  sup- 
plied by  the  fact  that  he  gave  the  deceased  all  the  odds  in  his 
power  against  himself. 

Another  suggestion  I  desire  to  call  your  attention  to  is  this — the 
certainty  with  which  the  bullet  of  the  injured  husband  takes  effect 
— and  I  regard  that  as  a  strong  moral  lesson.  You  often  read 
accounts  of  policemen  who  are  fired  at  when  they  are  endeavoring 
to  arrest  desperate  characters.  In  some  instances  policemen  will 
surprise  burglars  when  engaged  in  their  work.  They  oftentimes 
surprise  them  when  escaping  with  their  plunder.  In  attempting 
to  arrest  them  sometimes  three  or  four  shots  are  fired  in  rapid  suc- 
cession at  the  policemen,  near  enough  to  take  effect,  but  without 
harming  them.  Unless  you  suppose  they  are  in  coats  of  mail, 
impervious  to  the  attack,  how  can  you  account  for  it  in  any  other 
way  than  upon  the  principle  that  some  unseen  hand  turns  the  bullet 
off.  I  have  often  myself  been  struck  with  the  miraculousness  of 
the  escape  of  policemen  under  such  circumstances  ;  but  in  every 
instance  where  a  frenzied  husband  sets  about  shooting  his  man,  he 
succeeds ;  and  one  shot  generally  fetches  the  business.  There 
seems  to  be  a  perfect  certainty  about  the  matter,  from  which 
there  is  no  escape,  thus  showing  the  extreme  moral  justice  of  the 
act. 

The  prosecution  have  left  this  Mrs.  McFarland  before  this  court 
in  the  attitude  of  a  mistress  instead  of  a  wife.  I  wish  that  to  be 
distinctly  borne  in  mind.  We  proved  by  Miss  Anna  Burns  that 
the  female  she  saw  married  to  the  defendant  in  December,  1857, 
now  wears  the  name  of  Richardson,  and  the  prosecution  have 
dubbed  her  "Mrs.  Richardson."  They  have  not  shown  that  she 
was  divorced,  or  that  there  has  been  a  subsequent  marriage  ;  and 
they  have  permitted  her  name  to  leave  this  court  as  being  that 
of  her  paramour.  The  necessity  for  that  was  this :  To  have 
brought  in  that  marriage  would  have,  of  necessity,  placed  Mrs. 
Calhoun  before  this  court  and  jury  in  such  a,  manner  as  that  she 
must  have  been  perfectly  riddled,  and  to  avoid  that,  they  did  not 
dare  to  go  into  the  reason  why  Mrs.  McFarland  now  bears  the 
name  of  Richardson.  I  submit  to  you,  on  the  evidence,  that  she 
appears  to  be  nothing  more  or  less  than  the  mistress  of  Richard- 


340  MODERN  JURY  TRIALS. 

son,  because  they  have  not  shown  the  first  marriage  was  annulled. 
They  have  not  gone  into  the  proof  on  that  subject,  nor  have  they 
permitted  us  to  go  into  it.  We  have  the  fact  that  the  woman  left 
her  husband,  and  was  never  exonerated  from  that  marriage.  She 
now  bears  the  name  of  a  man  who,  we  say,  was  her  paramour  ;  and 
she  stands  before  the  world  in  that  character. 

I  now  come  to  the  occurrence  itself — the  shooting  on  the  twen- 
ty-fifth of  November,  1869.  You  will  find  that  the  evidence  for 
the  prosecution  leaves  it  in  a  very  unreliable  state,  and  from  the 
obscure  manner  in  which  it  is  left  I  argue  that  you  will  adopt  your 
own  presumptions  as  to  what  the  occurrence  was,  rather  than 
the  affirmative  evidence  for  the  prosecution.  All  the  witnesses 
for  the  prosecution  are  in  the  interest  of  the  Tribune  establish- 
ment. 

THE  KILLING  WAS  INSTANTANEOUS. 

We  believe  there  was  scarcely  an  instant  of  time  between  the 
entrance  of  these  two  persons,  and  that  the  coincidence  was 
brought  about  to  work  out  the  Divine  vengeance,  and  that  it  was 
impossible  for  the  adulterer  to  escape.  Mr.  King  says  it  was 
fifteen  minutes  past  five  when  the  defendant  came  in  and  stood 
abreast  of  the  desk.  They  make  twelve  minutes  from  his  coming 
in  to  the  shooting  of  Richardson,  though  the  act  must  have  been 
almost  simultaneous.  Mr.  King  says  it  was  not  very  dark  when 
the  shooting  occurred.  The  prisoner  was  in  Mr.  None's  office  not 
earlier  than  twenty  minutes  before  five,  and  he  was  there  nine  or 
ten  minutes,  so  that  he  must  have  left  it  a  little  before  five  o'clock 
in  the  afternoon.  On  that  afternoon  the  sun  set  at  twenty-nine 
minutes  before  five,  and  daylight,  as  usual,  lasted  about  half  an 
hour  afterwards;  so  that  that  would  bring  dark  at  about  one  min- 
ute past  five.  Mr.  King  was  right.  We  have  no  doubt  the 
deceased  was  shot  about  dusk.  They  had  gas  lighted  in  the  office, 
but  we  maintain  it  was  not  absolutely  dark;  that  Mr.  McFarland 
reached  the  office  before  it  was  full  dark;  that  Richardson  came  in 
almost  simultaneously,  and  that  having,  as  Dr.  Hammond  says  he 
had,  congestion  of  the  brain,  to  occasion  an  explosion  nothing  was 
needed  but  the  application  of  the  match. 

******** 

You  are,  gentlemen  of  the  jury,  men  of  common  sense.  You 
will  perfectly  understand,  that  if,  on  the  Broadway  side  of  this 
park,  this  man  was  in  a  condition  in  which  he  was  not  fit  for  per- 
sonal liberty,  he  could  not,  in  a  few  seconds,  resolve  himself  into  a 
perfect  state  of  calmness.  The  explanation  of  this  matter  is  this: 


McFARLAND-RICHARDSON  CASE.  341 

He  was  not  there  long  enough  to  be  observed  by  the  inmates  of 
that  office.  The  thing  was  so  sudden,  they  scarcely  knew  the  man 
was  there  before  the  pistol  was  fired,  and  then  there  was  such  a 
disturbance  and  embarrassment,  they  were  not  conscious  of  what 
took  place  afterwards.  They  did  not  know  enough  to  raise  an 
alarm.  It  was  not  known  any  one  was  shot  when  he  went  out, 
nor  did  McFarland  himself  know  he  had  shot  Richardson  in  a  vital 
part  of  the  body.  How  did  he  know  when  he  fired  that  one  shot, 
that  that  shot  had  taken  effect  ?  Why  was  he  permitted  to  retire 
without  molestation?  The  answer  is,  that  the  thing  was  so  instan- 
taneous, and  created  such  amazement  and  confusion,  the  persons 
there  were  hardly  conscious  of  what  went  on. 

He  might  have  been  in  Mr.  Sinclair's  office,  or  any  other  part  of 
the  building;  but  I  want  to  show  how  determined  they  are  to 
destroy  this  man.  Mr.  Carver  said  he  thought  he  saw  him  there  at 
three  o'clock  in  the  afternoon.  "Suppose,"  I  said,  "we  show  that 
at  that  time  he  was  miles  away  from  there,  what  then?"  Tt  was 
because  of  my  hurling  that  bravado  at  him — a  mere  professional 
bravado — he  was  induced  to  shrink  from  what  he  stated,  and 
retract  every  word  of  it.  The  object  of  that  was  to  show  that 
Mr.  McFarland  was  mousing  around  the  office  waiting  for  Rich 
ardson. 

As  to  the  fact  of  Richardson  being  armed  at  the  time  of  the 
occurrence,  it  is  perfectly  apparent.  If  it  has  no  other  significa- 
tion than  this,  it  shows  that  he  was  prepared  to  kill  the  prisoner. 
It  shows  precisely  that  he  was  armed  to  make  himself  superior  to 
the  man  he  had  wronged;  and  you  will  perceive  his  guilt  in  this. 
Why  did  he  wrap  that  pistol  in  a  flannel  cloth  and  hand  it  to  a 
friend  for  the  purpose  of  being  concealed,  when  he  did  not 
know  how  many  minutes  of  life  where  then  left  to  him?  Why 
did  he  carry  out  his  wickedness  against  this  man  in  trying  to 
suppress  so  important  an  evidence  as  that,  when  he  did  not  know 
how  many  minutes  he  had  to  live,  and  when  he  wanted  to  have  it 
said,  when  he  was  gone,  that  he  was  assassinated — an  unarmed 
man — by  the  man  who  had  prepared  himself  beforehand  to  cause 
his  death  when  he  encountered  him  ?  He  was  so  wicked  to  this 
man  that,  at  the  very  last  moment,  he  did  not  want  it  known  to 
any  person  but  those  who  would  keep  it  concealed,  that  he  had 
a  malicious  intention  against  the  prisoner.  He  did  not  want  to 
have  it  known,  not  only  that  he  earned  death,  but  that  he  was  pre- 
pared to  deal  death  to  him  who  had  suffered  such  great  wrongs  at 
his  hands. 

Let  me  ask  you:  attention  for  a  moment,  gentlemen  of  the  jury, 


342  MODERN  JURY  TRIALS. 

to  the  peculiarity  of  a  husband's  position.  A  husband  outraged 
like  this  one  has  to  do  something;  he  cannot  lie  down  under  it. 
If  he  shoots  he  is  a  murderer,  and  if  he  sues  he  is  a  craven.  If  he 
wants  money  he  has  no  spirit,  and  if  he  rises  to  the  dignity  of  an 
avenging  manhood  he  must  go  to  the  gallows.  What  is  he  to  do? 
Is  he  to  lie  down  under  it  ?  I  have  read  you  the  undying  words 
of  the  lamented  Brady;  I  have  read  you  the  prayer  of  the  immor- 
tal Stanton  ;  and  where  is  the  man  whose  heart  pulsates  with 
humanity  that  does  not  respond  to  every  sentiment  contained  in 
them.  Let  me  here  refer  to  the  case  of  Bunnett  v.  Greathead,  49 
Barbour's  Supreme  Court  Reports,  page  106,  which  was  decided  in 
this  state  in  the  Second  Judicial  District,  where  a  husband  got  a 
verdict  of  ten  thousand  dollars  against  a  party  for  debauching  his 
wife.  He  had  followed  his  wife  to  a  wood-shed,  caught  her  and  her 
paramour  in  the  very  act  of  adultery,  did  not  interfere,  and,  as  his 
own  witness,  proved  it  on  the  trial.  The  jury  gave  him  a  verdict 
of  ten  thousand  dollars,  but  the  court  set  it  aside  upon  the  ground 
that  the  man  who  could  quietly  see  his  wife  dishonored  was  enti- 
tled to  no  damages  at  all.  That  is  the  doctrine  of  the  court.  I  ask 
your  honor  to  look  at  this  case,  in  which  the  court  virtually  decided 
that  such  a  verdict,  if  upheld,  would,  in  effect,  countenance  and 
build  up  vice  and  immorality. 

Let  me  now  refer  briefly  to  a  father's  right  to  his  child.  This 
man  makes  no  claim  to  the  body  of  this  woman;  but  he  is  a  father, 
and  he  wants  his  child.  According  to  the  learned  commentator 
Blackstone,  that  great  duty  of  protection,  owing  by  a  father  to  his 
child,  is  a  natural  duty,  rather  permitted  than  enjoined  by  secular 
law,  working  so  strongly  as  rather  to  need  a  check  than  a  spur. 
Speaking  of  the  obligations  of  maintenance  a  parent  is  under  to  his 
child,  that  great  commentator  uses  language  more  potently  descrip- 
tive of  the  extent  and  strength  of  paternal  affection  than  anything 
of  mine  could  possibly  be.  I  will  read  his  language:  "The  muni- 
cipal laws  of  all  well-regulated  states  have  taken  care  to  enforce 
this  duty;  though  Providence  has  done  it  more  effectually  than  any 
laws,  by  implanting  in  the  heart  of  every  parent  that  natural  or 
insuperable  degree  of  affection,  which  not  even  the  deformity  of 
person  or  mind,  not  even  the  wickedness,  ingratitude  and  rebellion 
of  children  can  totally  suppress  or  extinguish."  The  reciprocal 
duty  of  children  to  their  parents  is  beautifully  described  by  the 
same  writer.  His  language  is,  that  "  the  duties  of  children  to  their 
parents  arise  from  a  principle  of  natural  justice  and  retribution. 
For  to  those,  who  gave  us  existence,  we  naturally  owe  subjection 
and  obedience  during  our  minority,  and  honor  and  reverence  ever 


McFARLAND-RICHARDSON  CASE.  343 

after;  they,  who  protected  the  weakness  of  our  infancy,  are  enti- 
tled to  our  protection  in  the  infirmity  of  their  age;  they,  who  by 
sustenance  and  education  have  enabled  their  offspring  to  prosper, 
ought  in  return  to  be  supported  by  that  offspring,  in  case  they 
stand  in  need  of  assistance.  Upon  this  principle  proceed  all  the 
duties  of  children  to  their  parents,  which  are  enjoined  by  positive 
laws."  *  *  * 

The  woman  was  not  alone  in  her  iniquity. 
Mrs.  Calhoun,  an  accomplice,  writes  her: 

"  My  dear  Mrs.  McFarland," — After  a  while  it  is  "  My  darling," 
and  pretty  soon  she  is  ready  to  eat  her  up.  "  It  was  a  good  inspira- 
tion which  led  you  to  write  to  me,  and  I  believe  I  wanted  to  hear 
from  you." — In  another  place  she  says:  "But  for  this  ignorant 
present  I  could  wish  myself  with  you  in  the  smallest  farmhouse 
that  ever  took  root  in  a  cleft  of  the  hills." 

********** 

"And  you,  I  hope  your  desire  and  purpose  for  the  stage  has  not 
faded  "  (Mrs.  McFarland  had  evidently  written  nothing  about  the 
stage),  "nor  been  trampled  out  by  hard  hoofs  of  necessity.  Have 
you  not  had  any  encouragement  ?  I  am  very  useless  in  that  way, 
having  no  direct  theatrical  influence,  but  I  will  try  to  obtain  some." 
Is  this  not  trying  to  get  her  on  the  stage ?  "I  know  that  you 
would  succeed,  and  I  fully  believe  it  to  be  your  best  and  noblest 
work."  It  is  said  by  some  friends  of  this  lady  that  these  letters 
were  not  written  for  the  public  eye.  No,  they  were  not ;  and  that 
is  what  makes  them  more  potently  significant.  They  were  written 
for  the  eye  and  mind  of  one  person,  and  their  publicity  was  not 
reckoned  on. 

Well,  she  goes  on  :  "  Nothing  so  much  as  the  stage  needs  good 
lives  and  good  heads."  This  is  not  complimentary  to  the  stage 
nor  is  it  true  in  point  of  fact.  I  have  the  honor  of  being  acquainted 
with  many  noble  men  and  women  on  the  stage,  and  I  have  their 
testimony  that  the  stage  is  as  high  morally,  and  in  every  other 
way,  as  any  other  avocation  pursued  on  this  continent.  Then  she 
says  :  "  I  know  I  could  help  you  in  the  direction  of  your  wardrobe, 
but  I  feel  there  is  not  much  else  that  I  can  do." 

Mrs.  McFarland  was  an  abortion  as  an  actress — never  could,  and 
never  was  meant  to  succeed — yet  Mrs.  Calhoun  says  :  "  I  think  you 
have  so  many  gifts,  your  beautiful  voice,  your  changing  color, 
your  varying,  soulful  face,  your  earnestness  and  freshness  of  nature, 
your  love  for  your  art — and  in  your  love  for  your  children  you 
have  also  the  highest  incentive.  Dear  child,  I  wish  I  could  make 


344  MODERN  JURY  TRIALS. 

your  path  straight  and  smooth,  to  the  highest  success ;  but  only 
that  success  is  highest  to  which  we  make  our  way  with  pain  and 
toil."  This  list  of  gifts  for  the  stage  was  not  true  in  Mrs.  McFar- 
land's  case.  She  had  none  of  the  talents  or  requirements  for  the 
stage.  It  was  simply  a  statement  meant  to  work  upon  her  weak- 
ness, and  it  did.  Then  she  tells  her,  "If  you  do  succeed  in  making 
an  engagement,  I  shall  not  have  one  shadowy  fear  of  your  his- 
trionic success,  and  I  shall  really  feel  that  I  have  done  some  good 
in  the  world — a  condition  of  feeling  which  I  have  often  felt  to  be 
unattainable." 

Commenting  on  the  intercepted  letters  from  Mrs.  Calhoun  to 

Mrs.  McFarland,  he  said  : 

******** 

It  is  enough  for  me  to  show  that  as  a  husband  he  had  a  right  to 
speak  in  reference  to  the  associates  of  his  wife. 

She  then  goes  on  to  say  :  "  It  is  profanation  for  you  to  stay  with 
that  man.  You  shall  not !  No  woman  ought  to  put  her  woman- 
hood to  open  shame,  as  you  have  been  forced  to  do  for  years." 
She  never  knew  her  until  January,  1866.  "It  is  most  cruel,  most 
devilish.  You  cannot  work  ;  you  cannot  advance  ;  you  can  make 
certain  of  no  future  for  yourself  and  the  children,  while  you  stay." 
Then  she  goes  on  to  say :  "  My  darling,  you  will  leave  him  scath- 
less  ;  the  world  is  more  generous  than  we  think  about  those  things. 
Every  thoughtful  man  or  woman  will  justify  you,  and  you  can 
shake  off  the  shackles  and  work  with  free  hands.  It  is  dreadful 
to  have  you  fight  against  such  odds.  I  think  you  could  live — 
yourself  and  Percy — for  what  you  earn  now,  and  if  you  can  only 
be  free,  so  that  you  can  improve,  your  salary  will  be  increased. 
It  is  wonderful  that  you  have  been  able  to  do  anything  with  your 
disabilities,  and  I  do  think  that  now  you  may  do  so  much.  Oh, 
do  leave  him,  my  darling  ! "  See  what  a  prayer  that  is.  "  Oh,  do 
leave  him,  my  darling  !  It  is  so  wrong  that  you  should  stay  with 
him." 

Friday  Evening. 

"Mr  DARLING — We  have  just  received  Mr.  R.'s  letter."  The 
wretch  was  so  exultant  over  his  victory  that  the  first  thing  he  did 
was  to  write  to  those  who  would  be  most  gratified  at  knowing  the 
fact.  "  I  am  so  glad  that  you  have  left  M.  Do  not,  I  beseech 
you" — here  is  prayer  all  the  time — "Do  not,  I  beseech  you, 
return.  Do  not  let  any  weakness  of  mercy  possess  you."  What 
is  it  that  makes  a  woman  angelic  ?  It  is  the  tenderness  of  her 
heart.  It  is  the  readiness  with  which  her  eye  suffuses,  and  dropa 
the  tear  of  pity  and  sympathy  at  human  suffering.  Here  she  exor- 


McFARLAND-RICHARDSON  CASE.  345 

cises  from  her  own  bosom  that  celestial  element  of  woman's  char- 
acter, and  asks  this  wretched,  erring  woman  also  to  expel  it  from 
the  limits  of  her  own  breast. 

"Do  not  let  any  weakness  of  mercy  possess  you.*'  Don't  forgive 
your  husband.  What  a  remark  that  to  make.  She  wrote  to  a 
woman  she  knew  was  likely  to  forgive  him.  But  she  says  :  Don't 
forgive  him  ;  don't  extend  to  him  any  mercy.  "It  is  happy  that 
the  stroke  has  fallen,  no  matter  what  heart-break  come  with  it." 

He  (pointing  to  the  prisoner)  sits  here  to-day  as  the  result  of 
that  heart-break.  That  broken  heart  has  placed  him  where  you 
now  see  him." 

"  I  could  be  glad  that  you  suffer,  if  your  suffering  would  keep 
you  away  from  him.  My  darling,  for  whom  I  would  die,  do  not 
so  wrong  your  womanhood  as  to  go  back.  You  must  not ;  shall 
not  !  When  I  come  back  you  shall  come  straight  to  me  and  stay. 
I  will  have  it  so  !  I  will  come  to-morrow,  if  you  need  me.  Write 
me,  my  darling,  all  things  ;  even  if  you  are  distracted — write." 

She  knew  that  the  woman,  then,  had  not  given  up  all  love  for 
this  man,  but  she  had  determined  she  should,  if  it  was  in  the  power 
of  her  persuasion  to  accomplish  that  result.  I  do  not  mean  to  read 
more  of  this  letter  than  the  final  portion  of  it ;  it  is  this  :  "All  my 
heart  is  yours.  Let  Mr.  R." — she  turns  her  then  over  to  Richard- 
son— "Let  Mr.  R.  help  you.  He  is  good  and  strong.  Stay  where 
you  are  until  I  come,  then  come  to  me,  my  darling." 

Read  these  letters  for  yourselves,  gentlemen  of  the  jury,  and 
put  your  own  construction  upon  them.  One  more  letter,  and  I 
have  done.  I  am  not  afraid,  for  I  am  emboldened  by  my  oath 
to  do  it,  to  read  these  letters,  and  let  them  carry  their  own  com- 
ments. This  letter  is  not  dated,  but  it  was  written  in  February, 
1867: 

"  MY  DARLING — I  suppose  you  must  be  snow-bound,  as  I  am,  and 
I  send  a  good-morning.  Lillie  and  Junius  pronounced  your  Lady 
Capulet  better  than  Mme.  S.'s  Juliet.  There  is  incense  for  genius. 
I  shall  work  all  day,  and  be  ready  to  help  you  to-morrow."  Gen- 
tlemen, tell  me  the  meaning  of  what  I  am  now  going  to  read  to 
you,  and  I  ask  the  court  to  attend  to  it  while  I  read  it : 

"  Sacrifice  yourself  by  going  to  Hennessey's,  or  in  any  other 
way.  My  fate  cries  out,  and  informs  me  that  I  wish  to  know  him  ; 
really,  to  get  at  him.  I  am  quite  sure  there  is  something  behind 
his  gray  eyes  and  mobile  face.  I  don't  like  knowing  people  indif- 
ferently." 


346  MODERN  JURY  TRIALS. 

Does  not  that  mean  this?  "You  go  to  Hennessey's,  make  hia 
acquaintance,  and  then  introduce  me."  Is  that  a  false  construc- 
tion of  it?  If  it  is,  I  desire  to  stand  corrected.  I  have  always 
regarded  this  as  a  note  which  should  never  be  offered  to  the  public 
eye,  and  I  have  only  consented  that  it  be  presented  to  the  public, 
under  a  sense  of  duty  that  satisfied  me  I  otherwise  would  be  traitor 
ous  to  this  man.  Let  me  read  it  over  again,  if  there  is  a  possibility 
of  mistake  about  it :  "  Sacrifice  yourself  by  going  to  Hennessey's, 
or  in  any  other  way.  My  fate  cries  out  and  informs  me  that  I 
wish  to  know  him  ;  really  to  get  at  him.  I  am  quite  sure  there  is 
somthing  behind  his  gray  eyes  and  mobile  face.  I  don't  like  know- 
ing people  indifferently." 

"There  are  just  three  persons  who  are  much  to  me  in  the  flesh." 
They  say  that  those  initial  letters  are  "You."  There  may  be  a 
doubt  as  to  whether  they  are  "  J.  R.  Y.,"  but  they  are  a  man's 
initials.  If  you  read  this  letter,  you  will  find  that  it  is  not  a 
female,  but  a  man,  she  refers  to. 

A  word,  gentlemen  of  the  jury,  upon  this  intercepted  letter. 
You  have  heard  it  read  over  and  over  again.  It  would  be  a  waste 
of  time  to  read  it  to  you  now.  My  construction  of  it  is  this:  That 
it  refers  to  a  perfect  system  of  philosophy,  professed  in  and  prac- 
tised by  this  man  Richardson.  You  will  perceive — and  almost 
the  outset  of  the  letter  shows  it — that  the  sooner  he  went  to  his 
grave,  if  this  was  his  doctrine,  the  better  for  society — "  Don't  be 
disturbed  about  your  family,  little  girl.  Families  always  respect 
accomplished  facts;  my  hobby,  you  know.  I  once  outraged  mine." 
Here  he  implies  that  she  has  outraged  hers.  She  had  no  cause  to 
leave  this  man,  nothing  of  the  kind.  He  continues:  "I  once  out- 
raged mine  a  great  deal  worse  than  you  ever  can  yours,  and  they 
are  the  straightest  sect  of  Puritans;  but  time  made  it  all  correct." 
I  ask  you  this:  Does  he  not  here  concede  that  in  leaving  her  hus- 
band she  outraged  her  husband  ?  But  he  tells  her  that  the  iniquity 
of  the  outrage  is  really  to  be  its  success;  that  the  world  do  not 
look  to  how  ends  are  brought  about,  so  long  as  they  are  brought 
about.  "  Accomplished  facts  "  are  all  the  world  wants. 

If  this  was  the  belief  of  this  Mr.  Richardson — and  that  it  was  we 
have  his  own  handwriting — was  he  a  fit  man  to  live  in  society,  if 
there  was  any  legal  way  of  depriving  him  of  his  life  ?  What  man 
could  be  more  dangerous  than  the  man  who  would  say:  "No  mat- 
ter how  I  get  your  purse,  no  matter  how  I  get  your  wife — if  I  fail, 
I  may  be  infamous;  if  I  succeed,  I  am  all  right." 

The  counsel  of  this  man  must  put  his  case  before  you.  The 
court  will  tell  you  that  that  is  their  sworn  duty,  and  they  cannot 


McFARLAND-RICHARDSOISr  CASE.  347 

B !i rink  from  it,  no  matter  whom  it  strikes.  We  are  not  asked  to 
j.  'esent  to  you  our  own  completions.  We  are  bound  to  tell  you  this 
TL  An's  case,  and  to  place  it  before  you  as  he  gives  it  to  us,  though 
it  strikes  the  first  and  the  tallest  in  the  land.  What  right  have  I, 
in  the  performance  of  professional  duty,  to  consider  into  what 
breast  I  strike  a  pang,  so  long  as  my  act  is  called  for  by  my  pro- 
fessional oath.  What  would  you  think  if,  when  you  sought  to  pass 
that  door,  you  were  warned  by  those  who  are  connected  with  the 
pro;  ecution,  that  if  you  rendered  a  verdict  in  favor  of  this  man, 
you  vould  be  shot  to  the  earth  ?  What  would  his  honor  upon  the 
benc  \  think,  if  he  was  told  to-day  that  if  he  did  not  charge  this 
jury  Against  the  prisoner  he  would  affront  those  powerful  influences 
that  itand  behind  this  prosecution,  and  that  he  could  expect  noth- 
ing but  immediate  death?  What  more  solemn  sanction  binds  him 
than  n  e  ?  What  more  solemn  sanction  binds  you  than  me  ?  I 
have  tal/en  an  oath  to  defend  this  man  before  this  court  and  jury, 
and  to  p  ace  before  you  all  the  material  he  has  put  into  my  hands, 
which  I  ran  possibly  make  available  for  his  deliverance  from  this 
charge.  What  alternative  have  I  but  to  do  precisely  as  my  oath 
of  office  demands — spread  out  the  facts  and  argue  upon  them  to 
you  precisely  as  any  other  lawyer  at  this  or  any  other  bar  would 
do? 

Mr.  Wai  eman  says  he  slept  with  Mr.  McFarland,  at  his  house  in 
Twenty-six^h  street,  on  Sunday  night,  November  14,  1869.  After 
they  had  been  in  bed  fifteen  or  twenty  minutes,  he  spoke  to  him, 
and  received  no  answer.  After  they  had  laid  down  about  half  an 
hour,  he  started  up  in  bed,  raised  his  hands,  and  exclaimed:  "My 
God!  my  God!  where  is  my  child  ?"  A  moment  after  he  laid  down 
ag^ain,  became  restless,  and  then  wakened.  Mr.  Wakeman  went  to 

O  t  * 

Woodside  with  him  on  the  eighteenth  of  November,  to  get  tidings 
of  his  child.  The  defendant  told  him  they  were  trying  to  get 
Danny  away  from  him,  and  that  was  the  ruling  idea  in  his  mind. 
Witness  first  went  to  a  grocery  store  to  inquire  about  the  child,  and 
brought  back  the  report  that  Richardson  was  married  to  his  wife. 
Mr.  McFarland  nearly  fainted,  cried,  and  was  frenzied.  The  witness 
then  went  and  made  further  inquiries,  and  reported  to  him  the 
result,  which  was  that  Richardson  had  been  there  the  day  before, 
and  had  gone  to  Massachusetts,  where  the  mother  and  Danny  then 
were.  Dr.  Ward,  in  speaking  of  his  dreams,  said  he  told  him  he 
had  dreams  and  visions  about  his  wife  and  children,  and  that  he 
must  have  them  back  or  die.  Dr.  Miner  says  he  frequently  spoke 
to  him  about  his  dreams.  He  would  ask  him  how  he  passed  the 
night,  and  he  would  say:  "My  God  !  I  passed  a  horrible  night;  I 


348  MODERN  JURY  TRIALS 

eonld  hear  the  voice  of  my  little  boy."  He  hears  that  roice  now, 
and  will  hear  it  ever,  until  he  is,  as  he  should  be,  in  the  full  posses- 
sion of  his  rights  as  a  father.  He  was  mad,  at  the  idea  of  being 
separated  from  his  child.  He  almost  became  deranged  at  the  sug- 
gestion. Where  is  the  man,  no  matter  how  willing  he  may  be  to 
lay  down  or  relinquish  his  marital  rights,  who  is  willing  to  give  up 
his  natural  property  in  the  issue  of  his  own  loins  ? 

To  Dr.  Miner  he  frequently  spoke  about  his  dreams,  and  on  one 
occasion  said:  "  My  God  !  my  God  !  I  have  passed  a  horrible  night. 
I  have  heard  the  voice  of  my  little  boy  calling  to  me,  I  could  see 
my  wife  in  Richardson's  arms.  I  sprang  out  of  bed,  trying  to 
catch  the  villain  by  the  throat.  Then  I  woke  in  a  tremor  and  per- 
spiration." 

I  will  here  call  your  attention,  gentlemen  of  the  jury,  to  some 
very  pointed  testimony  of  some  of  the  lay  witnesses.  Mr.  St.  John 
Green,  one  of  Richardson's  Boston  counsel  in  the  fight  to  keep  this 
father  away  from  his  children,  saw  McFarland  between  April, 
1867,  and  the  close  of  the  year.  He  said  he  appeared  to  be  near 
the  border-line  of  insanity.  He  had  a  wild  look,  and  seemed  as 
though  he  was  on  the  point  of  disturbing  the  habeas  corpus  pro- 
ceedings, when  present  at  them.  Edward  K.  Phillips,  another  of 
Richardson's  Boston  counsel,  said  that  during  that  period  McFar- 
land behaved  like  a  madman.  His  conversation  was  very  painful. 
He  was  always  going  over  his  griefs.  The  witness  mentioned  this 
fact  to  his  senior  counsel,  and  left  it  to  him  to  suggest  to  the  court 
that  McFarland  was  unfit  to  be  the  custodian  of  his  children,  from 
irrationality.  Then  the  evidence  of  Mr.  Eastwood,  an  intelligent 
merchant  of  this  city.  He  had  an  interview  with  McFarland,  near 
the  time  of  this  shooting,  and  he  tells  yon:  "My  impression  and 
opinion  was  that  he  was  not  in  his  right  mind.  I  regarded  him  as 
a  monomaniac."  Mr.  Peter  Gillespie,  another  witness,  had  an 
interview  with  him,  in  May,  1868,  and  he  says:  "  I  thought  him 
perfectly  crazy."  He  told  this  witness  that  he  would  be  at  his 
funeral  in  three  or  four  days — that  he  intended  to  end  his  existence; 
that  he  could  not  live.  Then  there  is  the  evidence  of  Mr.  Cough- 
lin,  who  was  in  the  same  office  with  McFarland,  in  June,  1869. 
Out  of  consideration  for  him,  he  was  treated  with  attention  and 
delicacy  in  the  office.  The  duties  they  assigned  him  required  no 
mind.  They  gave  him  such  things  to  do  as  required  little  memory 
and  thought.  Yet  he  would  forget  all  about  them.  They  then 
put  them  down  on  paper,  bat-  he  would  still  forget.  He  wa» 
understood  to  be  in  great  trouble.  On  one  occasion  when  Cough- 
lin  saw  him,  he  was  more  nervous  and  excited  than  ever  before. 


McFAftLAND-RICHARDSON  CASE.  349 

He  said:  "My  wife  has  got  a  divorce,  and  she  is  going  to  marry 
Richardson.  He  is  going  west  to  start  a  newspaper,  and  is  going 
to  take  my  wife  and  child  with  him."  On  this  occasion  he  insisted 
on  accompanying  Coughlin,  and  he  could  not  shake  him  off.  His 
conversation  was  very  incoherent,  and  it  was  sometimes  impossible 
to  make  head  or  tail  of  what  he  was  saying.  Then  there  is  the 
testimony  of  Mr.  William  Marsh,  who  was  with  him  from  January, 
1867,  when  he  was  appointed  to  a  position  in  Mr.  McElrath's  office, 
down  to  September  of  the  same  year.  He  says  that,  until  in  Feb- 
ruary, he  was  a  sociable,  kind-hearted,  entertaining  man;  then  all 
of  a  sudden  he  changed,  and  in  March,  1867,  he  commenced  talking 
to  himself,  and  when  a  person  took  his  hand  to  shake  hands  with 
him,  the  fingers  were  contracted,  so  that  you  had  to  pull  them  out 
to  shake  hands  with  him — that  this  was  after  he  secured  the  inter- 
cepted letter,  and  that  he  had  a  horrible  expression  of  the  eyes. 

Ten  days  before  the  shooting,  Mr.  Marsh  met  him  by  St.  Paul's 
church;  and  he  was  then  in  such  a  state  of  nervousness,  he  did  not 
dare  to  leave  him  in  the  street.  He  said  to  Mr.  Marsh:  "Lend 
me  thirty  dollars.  If  I  had  it,  I  could  upheave  the  universe; 
but  I  have  no  friends  and  no  money,  and  I  can  do  nothing  without 
it,  as  everybody  is  against  me."  He  said  he  could  do  nothing 
against  Richardson  without  money.  The  next  evidence  I  shall  call 
your  attention  to  is  that  of  Mr.  Bowen,  the  blind  preacher,  and  how 
strongly  does  it  speak  as  to  the  condition  of  this  unfortunate  man, 
when  it  could  be  appreciated  by  a  man  without  eyes!  Mr.  Bowen 
knew  him  in  Newark  in  1842,  when  he  was  a  harnessmaker;  and 
he  told  you  how  McFarland  employed  his  leisure  hours  in  study. 
He  met  him  afterwards,  in  Boston,  in  1867,  during  the  pendency 
of  the  habeas  corpus  proceedings,  and  he  says  :  "  I  noticed  a 
peculiarity  in  his  voice  that  I  had  frequently  noticed  in  persons  in 
insane  asylums."  Then  we  have  the  evidence  of  Mr.  Isaac  E. 
Clark,  one  of  the  firm  of  Sanford  &  Le  Barron.  He  testified 
that  such  was  the  state  of  McFarland's  mind,  they  did  not  dare 
let  the  judge  in  Massachusetts  see  him,  for  fear  both  children 
would  be  kept  from  him.  It  was  under  the  apprehension  of  that 
danger  a  compromise  was  made,  and  this  wicked  woman  secured 
the  younger  child,  and  he  was  allowed  to  retain  only  the  elder. 
In  fact,  time  will  not  allow  me  to  go  over  all  the  pointed  testimony 
adduced  here  to  show  the  insane  condition  of  this  man's  mind. 
We  have  produced  forty-one  lay  witnesses  and  three  medical 
experts  for  that  purpose — forty-four  witnesses  in  all.  Almost  four 
juries,  more  than  three  full  juries — have  taken  their  oaths  in  this 
case  that  this  man  is  not  responsible  for  his  deed. 


350  MODERN  JURY  TRIALS. 

Let  me,  for  an  instant,  gentlemen  of  the  jury,  refer  to  the 
medical  testimony  adduced  for  the  defense.  We  have  examined 
Dr.  Hammond,  Dr.  Parsons,  and  Dr.  Vance — three  of  the  most  dis- 
tinguished men,  in  their  own  peculiar  line,  in  this  country.  Dr. 
Hammond  is,  I  understand,  considered  to  be  at  the  head  of  this 
department  in  this  country.  I  have  conversed  with  medical  gen- 
tlemen on  the  subject,  and  they  concur  in  according  him  that 
standing.  He  and  Dr.  Vance  were  witnesses  against  Reynolds, 
•who  was  recently  executed  in  this  city,  and  but  for  their  testimony 
he  would  have  escaped  the  gallows.  They  both  pronounced  against 
the  insanity  of  Chambers,  who  was  lately  tried  at  a  court  of  oyer 
and  terminer,  held  in  Brooklyn,  and  acquitted  as  insane,  although 
Dr.  Vance  alone  gave  evidence,  as  a  witness,  for  the  prosecution. 
It  has  been  proclaimed,  since  that  acquittal,  that  Chambers,  in  a 
glorying  spirit,  boasted  that  he  managed  to  humbug  every  physi- 
cian but  Dr.  Vance.  Whether  Dr.  Hammond  and  Dr.  Vance  are 
right  or  not  in  the  testimony  they  have  given  as  to  Mr.  McFar- 
land's  mental  condition,  it  is  clear,  from  what  I  have  stated,  that 
they  are  not  the  men  to  say  what  they  do  not  fully  believe,  and 
that  when  they  say  a  man  is  insane,  they  are  worthy  of  credit, 
because,  though  they  were  contradicted  in  the  two  instances  to 
which  I  have  referred  by  the  judgments  of  other  medical  men, 
events  proved  that  they  were  right.  As  to  Dr.  Parsons,  I  may 
state  to  the  jury  that  he  is  at  the  head  of  one  of  our  public  institu- 
tions, and  one  of  the  most  expert  alienists  in  the  land.  The  testi- 
mony of  Dr.  Hammond  is  substantially  this:  The  ailments  of  Mr. 
McFarland  had  produced  violent  congestion  of  the  brain,  and  when 
the  brain  is  in  that  condition,  it  is  only  necessary  for  some  power- 
ful and  sudden  emotion,  related  to  the  main  cause,  to  act  upon  the 
congestion,  to  precipitate  an  individual  into  some  such  act  as  is 
charged  against  the  prisoner  at  the  bar.  His  evidence  was,  that 
when  the  prisoner's  brain  was  in  that  condition — Richardson  hav- 
ing been  the  cause  of  all  his  wrongs  and  sufferings — the  very 
sight  of  him  would  be  all  that  was  needed  to  make  him  perfectly 
insane,  and  betray  him  into  the  act  which  he  then  and  there  per- 
formed. 

Dr.  Hammond  says  that  normal  persons  obey  the  intellect — that 
is,  act  upon  reflection.  There  you  find  reason,  memory,  judgment — 
the  analyzing  and  deciding  powers  of  the  mind.  There  are  four 
departments  to  the  mind — the  perceptions,  the  intellect,  the  emo- 
tions and  the  will.  A  man  may  be  partially  deranged,  in  the 
derangement  of  any  one  of  these  functions  of  the  mind.  If  a  man 
's  deranged  in  his  volition  or  will,  he  is  as  truly  unaccountable  for 


McFARLAND-RICHARDSON  CASE.  351 

the  act  performed  under  that  impulse,  as  if  he  was  completely  and 
radically  deranged.  Insanity  has  been  defined  to  be,  for  the  pur- 
poses of  this  trial,  an  organic  disease,  destroying  freedom  of  mind 
and  action. 

As  to  the  threats  which  Mr.  McFarland  is  said  to  have  uttered 
against  Richardson,  we  have  had  forty-one  witnesses  upon  the 
stand  for  the  defense,  who  have  spoken  of  his  violent  manner,  for 
more  than  two  years  past,  in  alluding  to  his  domestic  troubles  ; 
but  not  one  of  them  testified  to  ever  having  heard  him  utter  a 
single  threat  against  the  libertine.  I  want  you  here  to  take  notice 
that  not  one  of  those  witnesses  heard  him  uttor  such  a  threat. 
Still,  a  handful  of  witnesses  are  brought  here  for  the  prosecution 
to  state  that  during  this  period  he  uttered  the  most  atrocious 
threats  against  the  deceased.  The  best  evidence  against  that  testi- 
mony is  the  fact  that  no  account  of  these  threats  reached  Richard- 
son himself,  nor  was  there  any  complaint  made  at  a  police  office  in 
consequence  of  them.  Sinclair  testified  to  a  threat — but  it  was  a 
conditional  one — in  regard  to  and  dependent  upon  Richardson's 
marriage  with  his  wife  ;  and  the  man  Howell,  who  testified  in 
regard  to  other  threats,  stands  stamped  before  you  as  utterly 
unworthy  of  belief.  We  have  proved  to  you,  by  the  evidence  of 
two  respectable  witnesses,  that  he  is  so  perfectly  infamous  as  to  be 
utterly  unworthy  of  credit  ! 

In  a  few  moments,  gentlemen  of  the  jury,  I  expect  to  conclude, 
You  must  have  been  satisfied,  from  certain  suggestions  made  by 
the  counsel  for  the  prosecution  in  questions  put  by  them  to  the 
different  witnesses  called  on  the  part  of  the  defense,  that  some 
person  was  prompting  them,  and  communicating  to  them  facts  that 
could  only  be  known  by  two  persons,  or  that  would  only  be  likely 
to  be  known  by  two  persons — the  prisoner  at  the  bar  and  his  wife. 
If  you  will  pass  over  other  incidents  of  this  trial,  in  your  memory, 
you  will  unquestionably  be  convinced  that  the  private  counsel  for 
the  prosecution  has  been  directly  or  indirectly  in  conference  or 
communication  with  Mrs.  McFarland,  in  order  that  he  might  have 
a  cue  for  the  examination  of  the  witnesses  for  the  defense.  What 
more  horrible  thing  !  That  this  wife,  in  addition  to  what  she  has 
already  done,  should  nevertheless  try  to  saddle  upon  this  husband 
and  father  the  cruel  fate  designed  to  be  the  goal  at  which  this 
prosecution  is  to  arrive. 

I  have  had  to  hurry,  gentlemen  of  the  jury,  through  the  latter 
portion  of  my  remarks.  I  will  rely  upon  your  recollection  of  the 
evidence.  I  have  sufficiently  refreshed  it  in  many  particulars  to 
enable  you  to  supply  such  deficiencies  as  may  exist  in  that  part  of 


352  MODERN  JURY  TRIALS. 

my  performance,  and,  in  fact,  to  supply  such  deficiencies  as  may 
exist  in  the  whole  of  my  performance.  I  know  that  you  are  over- 
come by  the  length  of  time  I  have  addressed  you.  I  am  satisfied 
the  court  is  worn  out ;  and  I  know  that  I  almost  begin,  physically, 
to  sink  under  the  ordeal  through  which  I  have  passed. 

I  have  been  greatly  assisted  by  my  noble  professional  brother 
(Mr.  Gerry)  in  this  case.  He  and  I  had  the  honor  to  be  associated 
on  a  previous  occasion,  when  our  labors  were  great,  but  in  this 
instance  they  have  been  much  greater  than  they  were  on  that  occa- 
sion. I  feel  under  the  greatest  obligations  to  him  for  his  aid,  and 
it  would  be  doing  the  greatest  injustice  to  him  were  I  not  to  state 
publicly  how  much  of  his  time  and  talent  he  has  spent  in  the  pre- 
paration of  this  defense.  Certainly,  no  case  ever  tried  in  this 
country  has  taken  more  labor  in  its  defense  than  this  one;  and, 
however  much  credit  has  been  given  to  me,  it  is  but  due  to  the 
cause  of  truth  to  say  of  many  of  my  performances  that  the  credit 
of  them,  at  least,  should  have  fallen  almost  exclusively  upon  the 
shoulders  of  my  learned  associate.  For  months  sacrificing  interests 
beyond  conception,  he  has  clung  to  this  case  with  an  ardor  I  have 
never  known  to  be  equalled  by  any  counsel  with  whom  I  have  had 
the  privilege  of  being  associated.  If,  in  passing  from  the  sphere 
of  my  duty  on  this  occasion,  I  have  gained  always  the  same  grati- 
fication for  him  he  has  gained  for  me,  my  satisfaction  will  be 
beyond  all  measure. 

The  position  you  occupy,  gentlemen  of  the  jury,  is  a  proud  one. 
Little  did  you  think,  when  this  event  first  happened,  that  you 
would  be  called  upon  to  assume  the  responsibilities  of  such  an 
occasion.  Meet  them  like  husbands — fathers — men.  The  highest 
interests  of  society  are  involved  in  this  proceeding.  Beware  how 
you  announce  that  the  desecration  of  the  marriage  relation  creates 
no  other  emotion  in  a  manly  bosom  than  that  of  mere  passion  or 
revenge.  By  all  the  considerations  which  hallow  it  in  your  eyes, 
do  not  thus  lightly  estimate  it. 

A  home  in  ruins !  How  distressing  the  desolation  1  All  sub- 
lunary happiness  is  short-lived,  at  the  best.  That  of  the  family 
circle  is  not  exempt.  One  by  one  its  members  may  be  summoned 
to  other  spheres — to  take  part  in  other  cares — to  put  on  other  rela- 
tions. Death  may  enter  its  portal,  and  receive  from  its  number  its 
victims.  In  all  this  there  is  pain,  but  grief  is  endurable  in  any 
form  but  that  of  dishonor. 

Donnis  arnica,  domus  optima — Home  is  home,  though  never  so 
homely.  The  best  home  for  us  is  that  which  receives  us  with  the 
warmest  heart,  and  welcomes  us  with  the  most  cordial  hand.  Intra 


McFA^AND-RICHARDSON  CASE.  353 

paternos parietes — within  the  walls  of  the  family  mansijn.  How 
happy,  how  joyous  are  these  words  !  At  their  mention  does  not 
the  memory  revert,  involuntarily,  to  the  abode  of  our  early  days, 
where,  gathered  around  the  family  fireside,  in  the  interchange  and 
correspondence  of  love  and  affection,  father,  mother,  brothers  and 
sisters  constituted  a  little  community  in  themselves.  Who,  if  we 
could,  would  not  be  a  child  again  ? 

To  you  are  committed  these  sacred  interests.  Upon  you  are 
rivetted  the  eyes  of  an  anxious  public.  You  are  here  to  reflect  in 
your  action  the  value  you  place  upon  your  own  hearths,  and  the 
affection  with  which  you  regard  your  own  firesides.  When  you 
return  to  them  from  this  place,  may  it  be  to  bear  to  them  the  glad- 
dening tidings  that  they  cannot  be  desecrated,  with  impunity,  by 
the  tread  of  the  adulterer.  Let  those  helpless  innocents,  who  lean 
upon  you,  feel  that  they  are  still  safe — that  they  still  enjoy 
security. 

The  purity  of  woman  is  not  to  be  questioned.  Her  virtue  is  a 
tower  of  strength.  It  has  ever  proved  itself  able  to  withstand  the 
strongest  and  most  persistent  assaults.  Still  are  we  not  taught 
daily  to  pray  that  we  may  not  fall  into  temptation  ?  In  her  appro- 
priate and  exclusive  department  may  she  ever  illustrate  her  scrip- 
tural portraiture — and  may  it  ever  be  the  highest  ambition  of  every 
wife  and  mother  to  have  it  said  of  her,  that  "  she  perceiveth  that 
her  merchandise  is  good;  her  candle  goeth  not  out  by  night" — 
that  "she  openeth  her  mouth  with  wisdom;  and  in  her  tongue  is 
the  law  of  kindness" — that  "she  looketh  well  to  the  ways  of  her 
household,  and  eateth  not  the  bread  of  idleness" — that  "her  child- 
ren rise  up,  and  call  her  blessed;  her  husband  also,  and  he  praiseth 
her" — and  that  "her  husband  is  known  in  the  gates,  when  he  sit- 
teth  among  the  elders  of  the  land."  Let  those  who  dare  dishonor 
the  husband  and  the  father — who  wickedly  presume  to  sap  the 
foundations  of  his  happiness — be  admonished,  in  good  season,  of 
the  perilousness  of  the  work  in  which  they  are  engaged.  As  the 
result  of  your  deliberations,  may  they  realize  and  acknowledge  the 
never-failing  justice  of  the  divine  edict,  that  jealousy  is  the  rage  of 
a  man — and  that  he  will  not,  can  not,  must  not,  spare  in  the  day  of 
his  vengeance. 

Acquitted,  and  counsel  heartily  congratulated. 
89 


354  MODERN  JURY  TRIALS. 

THE  NEWLAND-EVANS  HOMICIDE. 

Trial  at  New  Albany,  Tnd.,  May,  1866. 

HISTORY    OF   TUB    HOMICIDE. 

In  the  town  of  Bedford,  Indiana,  there  were  living,  in  the  month 
of  February,  1866,  two  men  who  were  extensively  known  through- 
out the  state  of  Indiana.  One  of  them  was  Dr.  Benjamin  Newland, 
the  other  Prof.  Madison  Evans.  Both  were  men  of  conspicuous 
ability,  and  each  was  the  head  of  a  family.  The  former  was  by 
several  years  the  senior  of  the  latter;  and  the  ages  of  their  children 
bore  relation  to  their  own.  The  professor  was  a  teacher  and  a 
minister  of  the  gospel  in  the  Christian  church  of  the  town ;  and 
the  doctor's  family  were  members  of  his  congregation,  and  some  of 
them  of  the  church.  The  eldest  of  his  children,  a  daughter,  well 
educated,  brilliant,  and  good  looking,  had  been  away  from  home  at 
a  boarding  school  near  Terre  Haute;  and  returned  upon  the  even- 
ing of  the  homicide  out  of  which  grew  the  trial  in  the  course  of 
which  the  following  speech  was  delivered.  The  facts  developed  in 
the  trial  were  voluminous,  and,  in  some  important  particulars,  con- 
flicting; but  in  sum  made  the  following  case: 

Dr.  Newland  left  his  house  in  the  fore  part  of  the  night  of  March 
5th,  1866,  and  before  the  people  had  retired;  and  repaired  to  his 
office,  where  he  armed  himself  with  a  revolver  and  catling  from  his 
amputating  case;  and  proceeded  at  once  to  the  residence  of  Prof 
Evans.  The  knife  was  rolled  in  brown  paper;  the  pistol  not  visible. 
When  he  arrived  there,  the  room  near  the  side  door  was  lighted, 
and  he  passed  to  the  front  door,  where  there  was  no  light  visible. 
Here  he  knocked;  and  Mrs.  Evans  came  with  light  in  her  hand  and 
opened  the  door.  She  was  then  in  a  delicate  condition.  The  doc- 
tor, who  had  doubtless  expected  to  meet  and  kill  the  professor  the 
moment  the  door  opened,  had  to  change  his  plan  from  action  to 
inquiry.  He  accordingly  asked:  "Is  Mr.  Evans  at  home?"  She 
told  him  that  he  was  not;  but  had  gone  into  town  to  correct  the 
proofs  of  a  speech  he  had  delivered  a  short  time  before,  and  which 
was  being  published  in  the  county  paper.  After  some  further 
conversation,  Mrs.  Evans  asked  the  doctor  whether  he  had  business 
with  Mr.  Evans.  He  answered,  "Yes,  madam;  I  have  business 
with  him."  The  whole  interview  was  brief:  and,  at  the  time, 
excited  no  suspicion  in  the  mind  of  the  wife  that  the  doctor 
intended  any  harm  to  her  husband.  After  thf  homicide,  however, 


NEWLAND-EVANS  HOMICIDE.  355 

she  did,  indeed,  think  that  there  was  something  bodei'ul  of  evil 
purpose  in  the  manner  in  which  he  emphasized  the  words,  "  I  hav6 
bitsiness  with  him."  But  this  was  not  marked  at  the  time;  and  he 
returned  towards  the  town,  and  she  to  her  room. 

There  lay  between  the  town  and  the  professor's  house  a  deep 
hollow,  which  required  the  doctor  to  go  down  one  hill  and  up 
another.  He  was  heard  to  pass  down  the  hill  with  rapid  strides 
and  loud  breathing.  He  had  passed  the  rill  that  ran  between  the 
hills,  and  reached  the  fence  on  his  left  that  bounded  the  road  lead- 
ing up  to  the  town,  when  he  heard  some  person  coming  down  the  hill 
on  his  own  side  of  the  road.  He  stopped  at  the  corner  of  the  field 
and  called  out:  "Who  comes  there?"  He  was  answered,  "Evans." 
He  said  to  Evans,  before  shooting,  "Do  you  know  my  daughter 
Helen  ?  You  have  seduced  her,  and  I  intend  to  kill  you."  And 
telling  a  friend,  the  next  day,  how  it  proceeded,  he  said:  "I  then 
shot  Evans,  and  he  did  not  afterwards  rise.  He  begged  me  not  to 
kill  him,  but  I  told  him  I  intended  to  kill  him."  The  wounds  of 
the  deceased  were  numerous  and  of  the  most  horrible  and  deadly 
character.  The  evidence  left  no  doubt  that  the  doctor  was  the 
perpetrator  of  the  homicide.  Indeed,  it  was  not  denied. 

The  defense  was  insanity.  It  was  attempted  to  be  proved  that 
at  an  early  period  of  his  life,  the  defendant  had  suffered  mental 
aberration  ;  and  threatened  to  commit  suicide.  But  it  was  shown 
that  that  condition  had  resulted  from  a  chronic  disease  of  the  liver, 
of  which  he  had  recovered.  All  the  other  evidence  tending  to 
prove  the  defense,  consisted  in  the  daughter's  statement  that  the 
deceased  had  seduced  her  several  years  before,  when  she  was  not 
more  than  fourteen  years  old,  and  kept  up  a  criminal  intimacy 
with  her  ever  since  ;  that  she  was  at  the  time  of  the  homicide  preg- 
nant by  him  ;  and  that  he  had  never,  down  to  the  moment  of  her 
confession  to  her  father,  offered  her  any  assistance.  This  confes- 
sion was  made  to  her  father,  the  defendant,  on  the  evening  of  the 
homicide  ;  and  just  before  he  went  out  from  home,  to  kill  Evans. 
From  home  he  went  to  the  office  of  Judge  Carlton  ;  and,  finding  it 
full  of  people  and  the  judge  not  in,  he  waited  for  him  on  the 
sidewalk,  conversing  about  agriculture  until  he  came.  They  then 
went  by  themselves  to  the  doctor's  office,  and  held  a  long  conversa- 
tion touching  the  seduction  of  his  daughter,  and  his  disposition 
to  kill  her  seducer.  Having  given  him  some  wholesome  advice, 
the  judge  left  him,  promising  to  send  his  brother  James  to  him. 
The  speech,  it  is  believed,  sufficiently  reveals  both  the  state  of  his 
mind,  and  the  cause  of  the  tragedy,  from  this  point  to  the  close  ; 
and  the  further  statement  of  the  facts  are  therefore  omitted  here. 


356  MODERN  JURY  TRIALS. 

The  case  was  transferred  from  the  Lawrence  circuit  court  at  Bed- 
*ord,  to  the  Floyd  circuit  court,  at  New  Albany.  This  change 
itself  was  so  greatly  detrimental  to  the  cause  of  the  prosecution 
that  but  little  hope  of  a  conviction  was  entertained  after  it  was 
taken.  At  New  Albany  the  defendant  had  the  advantage  of  very 
wealthy  and  influential  relations,  which  he  would  not  so  fully  have 
enjoyed  at  the  scene  of  the  homicide.  The  trial  was  set  for  May 
6,  1866  ;  and,  both  parties  being  ready,  it  proceeded  forthwith. 
The  evidence  closed  upon  the  tenth,  and  the  argument  on  the  four- 
teenth of  May.  The  speech  of  Major  Gordon,  for  the  prosecution, 
was  delivered  May  12,  1866.  It  was  never  well  reported,  there 
being  no  short-hand  reporter  at  the  trial  ;  but  the  substance  of  the 
argument  was  published  at  the  time  in  the  Commercial,  and,  with 
slight  and  unimportant  changes,  is  as  it  is  here  given. 

The  defendant  was  acquitted,  not  because  he  was  believed  to 
have  been  insane  at  the  time,  but  because  the  jury  regarded  him 
as  so  wronged  in  his  paternal  rights  and  affections  by  the  deceased, 
that  he  had  a  right,  by  an  older  and  higher  law  than  that  of  the 
land,  to  kill  the  seducer  of  his  daughter.  Aud  yet  the  course  of 
the  evidence  in  the  case  renders  such  views  of  justice  absurd  in 
the  extreme.  Thus,  the  daughter  was  permitted  to  tell  the  jury 
the  story  that  she  had  told  her  father,  touching  her  seduction,  but 
all  inquiry  in  regard  to  its  truth,  was  cut  off,  on  the  ground  that 
it  was  of  no  material  importance  whether  it  was  true  or  false — the 
real  question  being  :  "  Did  she  tell  it  to  her  father  ;  and  did  he 
believe  it ;  and  did  it  thus  become  the  cause  of  insanity  in  him  ?" 
And  so,  no  evidence  to  impeach  her  was  allowed  ;  and  no  question 
was  permitted  to  be  made  whether  she  was  seduced  by  the  deceased, 
or  by  some  one  else.  Of  course,  fair  play  would  have  denied  the 
defendant  the  benefit  of  an  argument  founded  upon  the  assumed 
truth  of  the  story  of  her  downfall.  But  this  was  not  denied  ;  and 
his  counsel  throughout  justified  the  homicide  on  the  ground  of  his 
injuries,  under  cover  of  a  defense  that,  if  true,  could  only  have 
excused  it  on  the  ground  of  his  incapacity  to  do  an  act  that  had 
any  element  in  it  that  was  either  justifiable  or  culpable.  The 
charge  of  the  court  was  exceedingly  conservative,  leaving  with 
the  jury  their  constitutional  "  right  to  determine  the  law  and  the 
evidence." 

As  the  case  is  developed  through  the  graphic  and  ingenious 
argument  of  Maj.  J.  W.  Gordon,  a  celebrated  advocate  of  Indian- 
apolis, a  few  words  may  be  added  on  his  manner  of  trying  cases. 
He  is  now  about  sixty,  in  the  full  possession  of  his  vigor  and 
determined  manner,  his  peculiar  skill  and  thorough  analysis  of 


NEWLAND-EVANS  HOMICIDE.  357 

human  actions.  His  forte  is  in  trying  fraud  and  criminal  cases, 
appearing  generally  for  the  defense.  He  has  a  singular  art  of  get- 
ting error  enough  to  reverse  a  case  three  or  four  times,  and  wear- 
ing out  his  adversary,  if  possible.  In  the  famous  Clem  case,  five 
trials  were  secured,  largely  through  his  influence. 

After  a  careful  selection  of  his  jury,  he  addressses  one  man  at  a 
time,  like  Choate,  gradually  passing  to  every  one  on  the  panel,  witn 
a  joke,  story,  illustration,  or  reason  peculiar  to  his  trade  or  employ- 
ment. His  closing  appeals  are  graphic  and  convincing. 

In  this  trial  we  find  many  touching  and  beautiful  passages,  in 
apt  and  suggestive  language,  such  as,  "  I  stand  for  the  law,  that 
will  survive  when  we  have  perished  and  passed  away;  that  is  rela- 
ted to  each  of  us,  and  defines  the  rights  we  shall  enjoy,  ere  we  are 
aware,  or  have  passed  the  gates  of  life.  It  graciously  meets  us 
with  friendly  arms,  leads  us  forward  with  paternal  hands,  teaches 
and  trains  us  for  our  duties  to  others,  goes  with  us  through  every 
stage  of  our  earthly  being,  defends  our  graves  from  desecration, 
and  our  dust  and  ashes  till  the  coming  of  the  resurrection,  and  thus 
makes  so  sacred  our  final  repose  that  the  sweet  rose  planted  by  the 
hand  of  affection,  or  the  wild  flower  blooming  over  our  final  rest, 
shall  not  be  destroyed  by  the  ruthless  hand." 

A  counsel  once  used  this  picture,  which  I  give  from  memory, 
showing  a  separate  point  for  a  separate  juror.  It  is  both  a  vivid 
and  exciting  word-painting,  and  resembles  Mr.  Gordon's  style. 

"  I  can  see  men  on  this  jury  who  remember  that  sultry  Sunday 
morning  when  we  were  tired  and  had  slept  late,  when  the  enemy 
came  upon  us  like  a  whirlwind,  scattering  fear  and  panic  in  his 
course,  while  our  half-dressed  company  hurried  to  their  saddles  and 
saw  a  plain  man,  riding  at  a  rapid  gallop,  on  a  big,  black  horse, 
along  the  lines,  sending  one  man  to  the  right,  one  to  the  left,  one 
on  one  message,  one  on  another,  and  before  we  could  think,  they 
were  all  in  their  places,  when  the  command  rang  out  on  the  clear 
morning  air,  '  Charge  ! '  and  we  wheeled  into  line,  and  with  a  des- 
perate struggle,  turned  back  the  enemy  that  in  a  quarter  hour 
would  have  driven  all  in  the  river!  There  was  no  rest  for  anyone 
that  day.  All  day  long  we  fought  in  smoke  and  dust,  without 
relief  or  rations;  and  late  in  the  afternoon  I  saw  the  man  in 
slouch  hat  and  dusty  blouse  galloping  again  up  a  hill,  and  raising 
his  hat  in  mid-air,  he  said,  'Charge!  double-quick  !  Charge!'  and 
we  charged,  and  won  !  And  when  I  looked  up  into  that  plain, 
strong  face,  on  beard  begrimed  with  sand  and  smoke,  and  saw  his 
beaming  eyes  full  of  satisfaction  at  the  work  we  had  accomplished, 
I  said,  *  That  is  the  handsomest  face  I  ever  saw  I*  That  was  Grant 


368  MODERN  JURY  TRIALS. 

at  Shiloh.  My  boy  was  in  that  battle,  was  shot,  went  down  to  an 
early  grave.  Had  he  lived  he  would  have  been  nearly  the  sue  and 
age  of  this  boy  (the  one  he  was  defending),  and  ever  since  that 
awful  day  we  have  set  the  vacant  chair  and  placed  the  plate  at  the 
table,  but  we  shall  see  him  no  more,  till  the  great  day  hereafter. 
Though  we  mourn  that  loss  and  feel  for  our  boy,  how  would  such 
a  death  compare  with  a  death  in  prison  ?  Ah,  gentlemen,  death  is 
never  so  terrible  as  dishonor.  It  is  an  awful  death  to  be  buried 
alive  in  prison  walls !  to  walk  the  narrow  halls  and  beg  for  liberty, 
saying,  *O,  how  sweet  the  air  smells  outside  to-day;  I  never  knew 
the  sunlight  was  so  good  before! '  Yet  this  is  prison  life,  and 
prison  death!  Can  you  comprehend  it?  Can  you  understand  it? 
You  that  think  the  weeks  are  long,  while  you  serve  your  state  and 
stay  away  from  home !  You  that  long  to  see  your  flocks,  your 
family,  and  even  your  favorite  dogs,  and  count  the  days  till  you 
shall  be  free  to  go  and  gather  up  your  little  boys  and  girls  !  Think 
of  it,  men  !  Think  of  a  hundred  weeks,  two  hundred,  three  hun- 
dred, a  thousand  weeks,  and  no  relief!  Shut  out  from  light!  Shut 
out  from  home!  That  is  a  prisoner's  fate.  Such  is  a  prisoner's 
home.  *  *  May  the  good  angel  of  mercy  keep  your  child 
and  mine,  and  this  poor  boy — who  is  after  all,  somebody's  boy — 
from  such  a  dreadful  death! " 

The  surprise  is  all  the  more  touching,  as  it  comes  in  a  way  to 
convince  and  persuade  a  jury. 

SPEECH  OF  MAJOR  GORDON,  OF  INDIANAPOLIS. 

MAY  IT  PLEASE  THE  COUKT: 

Gentlemen  of  the  Jury — I  fully  agree  with  Mr.  Davis  in  regard 
to  the  importance  of  this  case.  In  every  respect  it  is  an  important 
case.  The  interests  staked  upon  your  verdict,  whether  we  regard 
it  as  affecting  the  defendant  or  the  public,  are  immense.  On  the 
one  hand,  all  the  defendant  is,  or  has,  or  hopes,  hangs  upon  your 
verdict;  and,  on  the  other,  the  just  administration  of  the  laws,  the 
safety  and  sacredness  of  human  life,  the  maintenance  of  social 
order,  and  the  prevention  and  punishment  of  murder — the  highest 
interests,  and,  indeed,  the  indispensable  principles  and  conditions  of 
society  and  life.  It  is  impossible  to  exaggerate  the  importance  of 
this  case. 

Some  things  have  been  said  by  my  brother  Davis,  which  I  should 
have  been  glad  if  he  had  omitted.  I  do  not  attribute  any  personal 
or  improper  motive  for  saying  them;  but,  uttered  without  the 
qualifications  which  I  am  sure  he  must  have  intended,  and  without 


NEWLAND-EVANS  HOMICIDE.  359 

which  they  would  be  both  personal  and  insulting  to  all  of  us  who 
differ  with  him  in  our  views  of  the  case — the  guilt  or  innocence  of 
the  defendant — they  deserve  a  passing  notice.  I  shall  give  them 
that  notice,  therefore,  which  I  think  they  deserve,  before  entering 
upon  the  discussion  of  the  case  on  trial.  I  regard  them  as  straw, 
or  chaff,  or  dust,  thrown  into  the  case,  by  the  gentleman,  for  the 
purpose  of  distracting  your  attention,  confusing  your  minds,  and  so 
rendering  them  incapable  of  the  right  apprehension  of  the  real 
questions  involved  in  this  trial,  and  of  rendering  a  fair  and  just 
verdict  upon  them. 

In  the  first  place,  he  has  assailed  some  of  the  state's  witnesses, 
because  they  have  contributed  money  to  carry  on  this  prosecution; 
and  has  lavished  upon  them  abuse  that  implies  that,  by  so  doing, 
they  have  violated  some  duty  imposed  by  law,  or  made  obligatory 
by  custom  or  morals.  Is  it  so,  indeed?  Shall  the  citizens  be 
told  by  the  ministers  of  justice,  in  the  presence  of  our  courts  and 
juries,  and  of  the  public  at  large,  that,  no  matter  what  atrocity 
may  hereafter  be  committed,  no  matter  how  poor  and  weak  the 
friends  of  the  victim  may  be,  no  matter  how  public  sentiment,  and 
law,  and  humanity  may  be  outraged,  he  must  not,  under  pain  of 
forfeiting  his  character  as  a  fair  and  honorable  man,  as  a  true  wit- 
ness and  good  citizen,  open  his  purse,  or  raise  his  voice  or  his  hand 
to  bring  the  malefactor  to  trial  and  justice?  If  this  be  so,  our  wit- 
nesses are  before  the  court,  whose  duty  it  is  to  repress  such  offenses 
by  inflicting  due  punishment  upon  each  offender,  and  to  that  end 
it  has  full  authority.  But  I  aver  that  they  have  not  offended  by  so 
doing.  They  have  but  done  their  simple  duty.  Had  they  don« 
less,  they  would  have  forfeited  their  character  as  good  and  public 
spirited  citizens.  It  is  the  duty  of  all  men  who  live  in  society  to 
use  all  just  means  to  prevent  its  laws  from  being  violated  in  the 
first  instance;  and  when  they  are  violated,  to  bring  home  to  the 
violator  the  penalties  which  they  have  prescribed.  Those  whom 
the  gentleman  has  so  cruelly  assailed  have  been  guilty  of  no  other 
fault  but  what  is  thus  imposed  upon  all  as  a  duty.  Instead  of 
meriting  censure,  they  deserve  approbation  and  praise.  Instead  of 
forfeiting  your  confidence  as  good  and  true  men,  they  have  thus 
given  you  a  new  and  weighty  pledge  that  they  are  worthy  of  it. 
But  the  gentleman  did  not  stop  with  his  assault  upon  our  witnesses 
and  others  who  supported  this  prosecution.  He  could  not  allow 
us,  who  have  accepted  a  place  in  the  prosecution,  to  pass  without 
censure.  After  telling  you,  with  his  accustomed  modesty  and  man- 
ners, that  "no  honest  man  can  say  that  Dr.  Newland  has  commit- 
ted any  crime,"  a  dozen  or  more  times,  he  went  on  to  say,  by  impli- 


360  MODERN  JURY  TRIALS. 

nation,  at  least,  if  not  in  direct  terms,  that,  in  his  opinion,  it  wa§ 
wrong  in  us  to  ace-apt  a  fee  to  prosecute  any  man  arraigned  for 
murder.  He  even  told  you  that  he  had  never  done  so;  and  referred 
triumphantly  to  the  example  of  the  very  justly  celebrated  John 
Rowan,  of  Kentucky,  as  the  standard  of  professional  ethics  upon 
the  subject.  I  always  admired  John  Rowan,  while  he  lived,  and 
find  no  fault  with  his  views  of  duty,  in  regard  to  prosecuting  men 
charged  with  crime.  If  he  thought  it  was  wrong  for  him  to  do  so, 
then  he  was  right  not  to  do  it.  Every  man  must  in  matters  indif- 
ferent in  law  choose  his  own  cause,  and  determine  what  he  will  and 
what  he  will  not  do.  But  this  leaves  me  equally  free  to  choose 
mine.  And  this  I  have  done  hitherto,  and  shall  hereafter  do,  with 
reference  to  my  own  convictions  of  right  and  duty.  As  for  the 
learned  gentleman,  I  know  not  what  may  have  been  the  motives 
that  determined  his  course.  He  may  never  have  been  offered  a  fee 
to  prosecute  any  one;  or  he  may  have  declined  it,  because  it  was 
not  satisfactory  in  amount;  or  from  other  motives  of  expediency. 
He  has  not  told  us  what  sacrifices  he  had  made;  and  until  we  know, 
the  facts  that  have  shaped  his  career,  his  practice,  and  what  he  has 
revealed  concerning  it,  are  worthy  very  little  consideration  as  fur- 
nishing an  example  worthy  of  imitation  by  our  profession.  I 
appeal  to  the  court  to  say  whether  it  is  wrong  for  an  attorney  to 
accept  an  employment  to  proseoute  a  person  charged  with  crime  ? 
I  am  a  sworn  officer  of  this  court — sworn  to  discharge  my  duties 
faithfully  and  to  the  best  of  my  abilities.  Have  I  violated  my 
oath?  Have  I  failed  in  the  performance  of  my  duties,  by  accept- 
ing this  employment  and  the  part  I  have  taken  in  this  prosecution  ? 
If  so,  I  am  amenable  to  censure  and  to  punishment.  Your  honor 
sits  here  to  see  that  we  do  not  violate  the  law,  by  any  public  omis- 
sion of  duty,  or  commission  of  wrong.  My  action,  my  whole  con. 
duct  in,  and  connection  with,  this  prosecution  has  been  open,  pub- 
lic and  known  to  the  court.  If  I  have  committed  any  wrong  which 
any  genllemau  has  any  right  to  refer  to  or  criticize  here,  that  wrong 
is  equally  known  to  your  honor,  as  it  is  to  him;  and  I  now  demand, 
for  that  wrong,  the  censure  and  punishment  at  your  hands  which 
my  offense  deserves.  It  is  your  right,  it  is  your  duty,  to  inflict 
them.  I  pause  for  your  judgment. 

The  COURT — Major  Gordon,  you  know  you  have  done  nothing 
wrong.  Go  on. 

I  have,  then,  done  no  wrong.  I  am  subject  to  no  censure  from 
the  court.  By  what  right,  then,  does  the  gentleman  presume  to 
question  my  conduct  ?  With  what  propriety  does  he  even  allude 


NEWLAND-EVANS  HOMICIDE.  361 

to  it?  It  is  out  of  the  case;  and  should  be  left  out  of  ail  considera- 
tion in  its  discussion  and  decision.  It  has  been  dragged  into  it  for 
no  lawful  purpose;  and  to  any  man  less  kindly  disposed  than 
myself,  would  be  regarded  as  offensive.  What  right  has  he  to  cen- 
sure what  "  the  law  allows  and  the  court  awards  "  to  me  as  a  right  ? 
He  is  my  senior  in  years,  and  as  such  I  respect  and  honor  him;  but 
in  my  official  relations  and  duties  here  I  am  his  peer,  and  deny  his 
right  to  censure  me  for  choosing  the  duty  that  I  shall  perform,  or 
the  manner  in  which  I  shall  see  proper  to  perform  it. 

[Here  Mr.  Davis  apologized  for  what  he  had  said,  and  disavowed 
all  intention  to  be  offensive.] 

Gentlemen,  we  live  in  a  land  of  law.  Our  law  is  the  express 
will  of  the  people.  It  is  enforced  by  the  government,  which  is  the 
agent,  the  creature  of  the  people — in  other  words,  the  people  organ- 
ized. But  what  is  the  law,  the  will  of  the  people,  which  is  the  only 
sovereign  we  obey  ?  Where  does  it  abide,  and  what  does  it  do  ? 
It  is  the  body  of  principles  and  rules,  which  the  people  have  adop- 
ted and  enacted  for  the  establishment  of  rights,  and  the  preven- 
tion, redress  and  punishment  of  wrongs.  It  is  everywhere,  like  the 
atmosphere  which  we  breathe.  It  is  the  vital  air,  in  which  all 
rights  live,  and  it  is  mortal  to  all  wrongs  and  crimes.  It  is  full  of 
life  and  power  to  preserve  life,  and  to  make  it  safe  and  sweet — to 
prevent  all  crimes  against  it  before  they  are  committed,  and  to 
punish  them  after  they  have  been  accomplished.  It  is  the  law  that 
protects  all  in  all  places;  and  pursues  him  who  violates  it  to  the 
injury  of  others,  to  avenge  them.  It  teaches  all  to  avoid  collisions 
and  harm  on  the  highways,  by  admonishing  each  "  to  keep  to  the 
right."  It  is  so  common,  so  universal,  so  essential,  that,  grown 
used  to  it,  it  is  only  in  its  violations,  and  the  retributions  with 
which  it  follows  them,  that  we  realize  its  presence,  at  least,  in  so 
far  as  our  natural  rights  and  duties  are  concerned.  Here,  in  this 
court,  it  is  visible  in  its  officers,  the  agents  through  whom  its 
author,  the  People,  have  chosen,  to  give  it  practical  expression* 
application  and  enforcement.  It  has  brought  us  together  from 
different  parts  of  the  state,  and  made  us,  for  the  time  being,  joint 
laborers  in  applying  its  general  principles  and  rules  to  the  particu- 
lar case,  in  the  trial  of  which  we  are  engaged.  It  is  represented  in 
his  honor  upon  the  bench,  in  each  of  you,  and  in  the  counsel 
engaged  on  both  sides.  Nor  is  it  inconsistent  with  itself  in  the 
duties  which  even  we  sustain  to  it,  or  to  the  part  we  perform  in 
the  trial.  On  the  contrary,  if  we  be  faithful  and  fair  in  the  con- 
flict of  opinion  and  discussion  to  which  we  are  here  called,  our 


362  MODERN  JURY  TRIALS. 

labors  *  ill  tend  to  lighten  yours,  and  so  make  it  easier  for  yon 
to  reach  a  right  verdict. 

The  law  was  before  us  all,  and  will  survive,  when  we  shall 
have  passed  away.  It  ante-dates  all  existing  societies,  and  will 
remain  when  they  shall  have  given  place  to  new  forms.  It  is 
related  to  each  of  us  before  we  know  that  it  exists;  and  defines 
beforehand  the  rights  that  we  shall  enjoy  and  the  duties  that 
we  shall  perform.  It  looks  forward  with  prophetic  vision  and 
paternal  solicitude,  and  provides  for  our  safety  and  well-being, 
before  we  have  passed  the  gates  of  life.  It  graciously  meets  us  at 
our  coming,  and  folds  our  naked  and  helpless  infancy  in  its  pro- 
tecting and  motherly  arms.  It  recognizes  our  rights,  and  shields 
them  from  invasion  or  harm,  long  ere  we  have  any  knowledge  of 
their  existence,  or  any  power  to  defend  them.  It  leads  us  forward, 
supporting  our  tottering  steps,  until  the  first  duty  is  laid  upon  our 
shoulders.  This  it  imposes  with  due  regard  for  our  weakness,  and 
with  a  gentle  hand.  It  teaches  and  trains  us  in  each  stage  of  our 
being  for  the  duties  of  that  which  lies  next  before  us.  In  a  word, 
it  goes  with  us  through  every  stage  of  our  lives,  from  the  cradle 
to  the  coffin,  and  when  we  are  buried  defends  our  graves  from  des- 
ecration, and  our  poor  dust  and  ashes  from  outrage  and  insult. 
And  so  it  makes  sacred  the  place  of  our  final  repose  until  the  morn- 
ing of  the  resurrection.  It  will  not  allow  even  the  rose,  that  the 
hand  of  love  may  plant,  or  the  wild  flower  that  may  bloom  there, 
to  be  touched  or  destroyed  by  any  ruthless  hand. 

The  law  grows  out  of  the  great  and  generous  heart  of  the  Peo- 
ple. It  is  framed  and  adapted  to  their  wants  by  the  common  mind. 
It  is  their  will,  expressed  in  the  manner  and  form  which  the  consti- 
tution has  imposed  for  their  security  against  oppression  from  what- 
ever quarter.  It  must,  therefore,  rely  upon  the  People — the  order- 
loving,  law-abiding — to  keep  it  strong  and  steadfast,  against  the 
disorderly  and  the  disobedient  who  strive  to  destroy  it,  and  to  abol- 
ish the  social  order  and  personal  safety  and  happiness  it  was  ordained 
to  establish  and  maintain  among  men.  He  who  violates  it,  finds 
his  offense  measured  and  its  punishment  prescribed;  and  society, 
and  its  creature,  the  State,  and  all  who  exercise  its  functions,  must 
abandon  their  duties,  and  set  at  naught  the  principles  upon  which 
social  order  depends  for  its  existence,  before  they  can  allow  the 
guilty,  on  the  one  hand,  to  escape  without  that  punishment,  01 
before  they  can,  on  the  other,  allow  it  to  be  inflicted  on  the  inno- 
cent. 

I  stand  before  you  to-day  for  the  law.  I  stand  against  those, 
and  those  only,  who  have  broken  it,  and  who  ask  you  to  break  it. 


NEWLAND-EVANS  HOMICIDE.  363 

I  stand  opposed  to  force  and  brute  violence,  and  ask  that  the  law 
may  be  enforced  for  their  suppression  and  punishment;  for  upon 
the  law  and  its  faithful  enforcement  depend  all  the  interests  of  the 
people — of  the  individual  and  community  at  large.  If  we  abandon 
the  law,  we  shall  find  ourselves  at  once  adrift  upon  the  great  ocean 
of  chance  and  uncertainty,  driven  by  the  winds  and  the  waves  of 
individual  passion  and  interest  against  each  other;  and,  like  the  mis- 
erable victims  of  shipwreck,  sinking  each  other  into  the  soundless 
depths  of  wretchedness  and  woe.  We  must  not,  therefore,  abandon 
the  law.  It  is  the  ark  of  safety  to  us  all.  Without  it,  life  itself 
is  a  negative  birthright.  But  here,  in  our  present  relations,  we  have 
no  existence  apart  from  the  law.  As  judges,  lawyers  and  jurors, 
we  are  its  creatures.  It  is  to  us  the  breath  of  life.  It  is  our 
creator,  and  has  exacted  from  each  a  solemn  oath  of  allegiance. 
We  have  taken  that  oath;  and  each  of  us  stands  bound  by  it,  not 
only  not  to  violate,  but  to  maintain  and  enforce  it;  and  this  all 
must  do,  let  it  crush  whom  it  may  crush,  or  save  whom  it  may 
save.  I  only  ask  you  to  perform  your  vows,  when  I  entreat  you 
to  stand  strongly  up  for  the  law.  It  is  our  only  bulwark  against 
the  return  of  brute  violence  and  barbarism.  Let  us  see  to  it  that 
it  is  kept  strong  and  steadfast  to-day;  that  it  may  so  abide  to-mor- 
row, and  forever. 

Seduction  and  murder  stand  alike,  branded  by  the  law — the  will 
of  the  people — your  will — the  will  of  us  all — as  it  has  been  written 
for  our  direction  in  respect  to  wrongs  to  be  avoided  ;  and,  when 
committed,  to  be  punished.  According  to  our  law,  there  are  two 
kinds  of  seductions  :  one  criminal  and  punishable  as  a  felony,  the 
other  a  mere  private  wrong  to  be  compensated  in  damages. 
Where  seduction  has  been  accomplished  by  an  unmarried  man, 
under  promise  of  marriage  made  to  an  unmarried  woman,  undwr 
the  age  of  twenty-one  years,  and  who  was  at  the  time  of  good 
character  for  chastity,  the  law  punishes  it  as  a  crime  ;  but  it  is  so 
careful  of  the  rights  of  the  defendant,  even  in  this  case,  that  no 
prosecution  can  be  maintained  unless  the  woman's  testimony  is  cor 
roborated  by  that  of  other  witnesses.  But  when,  on  the  other 
hand,  the  seduction  has  been  accomplished  without  a  promise  of 
marriage,  whether  by  a  married  or  an  unmarried  man,  the  law 
allows  no  criminal  prosecution.  It  only  gives  the  parent  of  the 
girl  or  the  girl  herself,  an  action  for  the  damages  resulting  from 
the  seduction. 

It  is  no  part  of  my  duty  to-day  to  discuss  the  question  whether 
the  law  upon  this  subject  is  right  or  wrong,  nor  of  yours  to  con- 
sider it.  That  the  law  is  so  written  is  the  only  fact  with  which 


364  MODERN  JURY  TRIALS. 

his  honor,  or  you,  or  I,  have  anything  to  do  in  our  present  rela- 
tions. If  it  has  been  unwisely  so  written,  it  must  be  corrected  by 
the  legislature.  In  the  meantime  we  must  obey  it,  or  involve 
ourselves  in  the  sin  of  disobedience.  It  is  ours  to  enforce,  not  to 
make  the  law.  In  our  capacity  as  citizens  we  may  change  it,  if  it 
displease  us.  In  that  case  we  can  elect  senators  and  representa- 
tives, and  send  them  to  the  general  assembly  with  instructions  to 
amend  it.  Until  that  can  be  done,  however,  let  the  law  be  hon- 
ored, obeyed,  and  maintained  by  its  ministers  and  the  people,  that 
so  the  principle  upon  which  alone  a  government  of  law  is  possible 
among  men,  may  be  preserved.  But  let  us  not,  so  long  as  we  need 
the  protection  of  government,  abandon  the  only  ground  upon 
which  it  can  stand,  either  by  acts  of  personal  violence,  or  by  law- 
less decisions  of  lawfully  constituted  courts.  Both  of  these 
methods  are  evil ;  but  the  last  is  far  worse  than  the  first  ;  for  it 
murders  the  law  in  the  name  of  the  law,  and  tends  to  bring  our 
social  and  political  institutions  to  utter  ruin. 

Murder  too  is  a  crime — a  high  crime — next  to  the  highest  known 
to  the  law.  Upon  proof  of  the  fact  against  any  citizen,  before  a 
proper  tribunal,  he  is  subject  to  be  punished  with  death,  or  impris- 
onment during  his  natural  life.  This  is  our  law  ;  and,  if  such  a 
case  is  now  before  you,  for  judgment,  the  duty  of  enforcing  it  is 
upon  you,  and  you  ought  not  to  strive  to  avoid  it.  I  do  not  think 
you  will. 

Let  me  say,  again,  if  the  law  of  murder  be  wrong,  let  us  send 
up  our  representatives  to  the  general  assembly  and  amend  it ;  for, 
until  it  is  amended,  it  is  right  for  us,  both  as  its  subjects  and  min- 
isters ;  and  everything  else  that  may  tempt  us  to  break  it  is 
wrong,  let  it  come  from  whatever  quarter  it  may  come.  Since  it  is 
right,  and  because  it  is  right,  let  us  stand  by  and  uphold  it  to-day, 
and  so  long  as  it  shall  remain  the  law.  We  are  sworn  to  stand  by 
it.  Shall  we  break  our  oaths,  and  so  far  as  in  us  lies,  abolish  soci- 
ety and  government ;  because  they  do  not  enable  us  to  do  what 
might  be  agreeable  to  our  feelings,  if  it  permitted  ?  But  we  have 
espoused  our  obligations  to  the  law,  and,  by  doing  so,  have  said 
that,  in  our  judgment  the  law  is  right.  "We  have  thus  pledged 
ourselves,  solemnly,  before  all  the  people,  and  before  Him  who  is 
the  Sovereign  and  Master  of  all  peoples,  that  we  will  stand  by  and 
enforce  the  law. 

Shall  we  allow  the  father  or  brother  of  her  who  may  have  been 
seduced  to  kill  him  whom  she  denounces  to  him  as  the  seducer? 
The  law  declares  such  a  homicide  to  be  murder.  Shall  the  slayer 
go  unwhipped  of  justice,  when  the  law  declares  that  he  shall  die  ? 


NEWLAND-EVANS  HOMICIDE.  365 

It  vitiates  all  principle,  for  it  sets  up  the  injured  one  as  judge  in 
his  own  case.  It  receives  evidence  without  oath,  ill  the  absence  of 
the  accused,  and  decides  the  case  without  hearing  both  sides.  It 
sets  up  a  rule  that  never  can  be  equal  in  its  application  to  all  cases 
of  equal  injury.  If  it  be  allowed,  where  shall  the  poor,  lone  and 
unfriended  orphan  find  her  judge  and  avenger,  when  her  unguarded 
feet  have  been  misled  by  the  wiles  of  the  seducer,  and  she  has 
fallen,  never  to  rise  again  ?  Alas  !  she  has  no  father,  no  brother, 
no  avenger.  And  so  you  would  establish  one  measure  of  justice 
for  those  who  have  friends,  and  another  for  those  who  are  friend- 
less. You  destroy  the  equality  of  the  law  before  the  people,  and 
the  equality  of  the  people  before  the  law;  and  annihilate  at  one 
blow  both  the  law  and  the  state,  whose  organ  it  is.  You  do  more; 
you  root  up  the  only  principle  upon  which  it  is  popular  for  a  free 
popular  government  to  stand.  Are  you  willing  thus  to  destroy  our 
free  institutions  ?  Are  you  willing  to  obliterate  every  trace  of  that 
equality  among  the  people  which  gives  them  their  chief  value  ? 
Is  this  labor  of  destruction,  the  defense  has  invited  you  ?  Is  this 
wicked  work,  my  brother  Davis  has  persuaded  you  !  Suppose  you 
shall  do  the  thing  they  ask  at  your  hands,  will  you  put  an  end 
thereby  to  seduction,  or  murder  ?  Suppose  you  shall  say  that, 
although  seduction  with  bastardy,  and  without  promise  of  mar- 
riage, is  no  crime,  not  even  a  misdemeanor — only  the  ground  of  a 
civil  action  for  damages — yet  you  will  allow  it  to  be  punished  by 
the  father  of  her  who  has  been  seduced,  with  death,  can  you  after- 
wards, with  any  show  of  reason  or  justice,  deny  the  son  of  the 
slaughtered  man  the  right  to  kill  the  slayer  ?  If  so,  upon  what  dis- 
tinction ?  In  the  case  of  the  seducer,  no  crime  has  been  committed; 
in  that  of  the  slayer  murder  has  been  done.  Shall  you  allow  murder 
in  lieu  of  a  civil  action  for  a  civil  wrong,  and  deny  it  in  lieu  of  a 
criminal  prosecution  for  one  of  the  highest  crimes  known  to  the 
law  ?  If  so,  where  shall  the  matter  end  ?  But  suppose  you  grant 
to  the  son  of  the  murdered  man,  when  he  shall  have  arrived  at 
man's  estate,  the  right  to  kill  him  who  slew  his  sire,  can-  you  deny 
to  the  son  of  this  second  victim  of  the  system  you  are  urged  to 
inaugurate  to-day,  the  right  to  destroy,  in  like  manner,  the  mur- 
derer of  his  father  ?  Do  you  not  see  that  such  a  system  leads  to  an 
endless  series  of  murders  ?  Do  you  not  see  that  the  function  of 
the  law  must  be  abolished  by  the  new  principle  that  has  been 
invoked  in  this  case;  and  that  wherever  and  whenever  it  may  be 
adopted,  the  people  must  revert  at  once  to  a  state  of  savage  indi- 
vidualism, in  which  each  will  depend  upon  himself  for  all  the  right8 
he  enjoys,  and  become  the  avenger  of  all  the  wrongs  he  may 


366  MODERN  JURY  TRIALS. 

Buffer?  The  result  of  the  adoption  of  such  a  principle  may  be 
foreseen  by  any  one  who  can  add  two  and  two  together.  There  is 
nothing  more  simple — no  sequence  more  evident. 

Homicide  has  several  grades.  It  is  either  justifiable,. excusable 
or  felonious.  It  is  not  contended  here  that  the  homicide  proved  to 
have  been  committed  by  the  defendant  is  justifiable.  The  defense 
rests  upon  the  assumption  that  it  is  excusable,  because  he  was 
insane  when  he  perpetrated  it.  If  this  is  true,  he  is  excusable;  for 
the  moral  quality  upon  which  alone  a  homicide  can  be  either  justi- 
fiable or  felonious,  does  not  pertain  to  the  violence  of  a  madman. 
He  is  excusable  because  he  has  no  moral  quality,  and  can  impart 
none  to  his  actions.  A  homicide,  however  atrocious  it  may  appear 
at  first  blush,  ought  to  provoke  no  resentment  *in  the  breast  of  an 
intelligent  man,  or  just  state,  when  it  is  found  to  have  sprung  from 
the  necessity  of  disease.  But  the  prosecution  is  not  convinced  that 
the  horrible  homicide  now  under  consideration,  can  be  so  excused. 
Indeed,  we  are  satisfied  that  it  is  not  only  not  so  excusable,  but  is 
in  fact  a  felonious  homicide,  darkened  by  every  shade  of  malevol- 
ence essential  to  constitute  a  murder  in  the  first  degree.  Our  law 
thus  defines  such  a  murder:  "Every  person  of  sound  mind  who 
shall  purposely  and  with  premeditated  malice  kill  any  human  being 
shall  be  guilty  of  murder  in  the  first  degree."  We  think  that  all 
the  elements  essential  to  this  definition  have  been  proved  beyond  a 
reasonable  doubt  to  have  entered  into  the  killing  of  Madison  Evans 
by  the  defendant.  On  the  part  of  the  defendant,  it  is  urged  that, 
upon  the  whole  evidence,  there  is  at  least  a  reasonable  doubt 
whether  the  defendant,  at  the  moment  of  the  homicide,  was  of 
sound  mind.  If  we  are  right,  he  must  be  convicted.  If  his 
learned  counsel  are  right,  he  must  be  acquitted.  The  whole  ground 
of  contest  lies  here  exposed  to  view;  and  it  is  so  plain  that  "  the 
wayfaring  man,  though  a  fool,  need  not  err  therein."  I  do  not, 
therefore,  propose  to  go  into  a  discussion  of  the  law  of  homicide. 
It  is  not  involved  in  the  case.  I  beg  leave,  however,  to  keep  before 
you  the  definition  of  murder  in  the  first  degree.  I  ask  you  to 
remember  that,  "  if  any  person  of  sound  mind  shall  purposely  and 
with  premeditated  malice  slay  another,  the  slayer  will  be  guilty  of 
murder  in  the  first  degree."  Be  careful  to  distinguish  the  elements 
of  this  crime.  The  slayer  must  be  a  person  of  sound  mind.  He 
must  kill  his  victim.  He  must  kill  him  purposely.  He  must  kill 
him  with  premeditated  malice.  If  these  constituents  enter  into 
any  act  of  homicide,  he  who  does  it  is  guilty  of  a  murder  of  the 
darkest  dye.  It  is  really  unnecessary  to  descend  to  the  lower 
degree  of  murder;  or  to  consider  the  law  of  manslaughter  at  alL 


NEWLAND-EVANS  HOMICIDE.  367 

My  argument  must  stand  or  fall  upon  the  definition  of  murder  in 
the  first  degree.  Still,  it  may  not  be  amiss  before  going  into  that 
argument  to  say  that,  murder  in  the  second  degree  exists  whenever 
a  homicide  may  be  truly  characterized  by  all  the  elements  of  mur- 
der in  the  first  degree,  except  premeditation.  Manslaughter  occurs 
wherever  there  is  an  unlawful  killing  of  one  human  being  by 
another,  without  malice.  But  it  is  unimportant  to  further  con- 
sider in  this  case  the  subordinate  grades  of  homicide,  or  even  to 
glance  at  distinctions  that  lie  below  them  and  outside  of  the  range 
of  crime. 

The  defendant  is  charged  with  murder  in  the  first  degree.  The 
fact  of  the  crime  is  alleged  to  have  taken  place  in  Lawrence  county, 
in  the  state  of  Indiana,  on  the  fifth  day  of  March,  1866.  The 
means  by  which  the  deceased  is  alleged  to  have  come  to  his  death, 
are  a  pistol  shot  and  several  cuts  and  stabs  with  a  knife.  It  will, 
therefore,  be  necessary,  before  the  state  can  demand  a  conviction 
of  the  defendant,  that  the  evidence  shall  satisfy  you  beyond  a  rea- 
sonable doubt: 

ffirst.  That  the  defendant  killed  Madison  Evans; 

Second.  That  he  killed  him  in  Lawrence  county,  in  the  state  of 
Indiana; 

Third.  That  he  killed  him  purposely; 

Fourth.  That  he  killed  him  with  premeditated  malice. 

If  these  propositions  are  proved  beyond  a  reasonable  doubt,  then 
you  must  find  the  prisoner  guilty.  Are  they  so  proved  ? 

It  is  proved,  I  think,  to  the  exclusion  of  all  reasonable  doubt, 
that  the  defendant  killed  Madison  Evans,  at  the  time  and  place, 
and  with  the  means,  described  in  the  indictment.  Indeed,  the 
defense  admits  as  much.  There  is  no  controversy  thus  far.  From 
this  proof  alone  the  law  implies  malice,  and  the  defendant,  if 
nothing  further  is  proved  in  the  case,  stands  guilty  before  you  of 
murder  in  the  second  degree.  This  much  the  law  infers  from  the 
facts.  Standing  upon  this  inference,  the  law  allows  the  state  to 
aggravate  the  grade  of  the  crime  by  showing  that  it  was  premedi- 
tated; and  the  defendant  to  mitigate  it  by  disproving  malice,  or 
that  it  was  not  unlawful,  because  excusable,  or  justifiable.  If  pre- 
meditation be  proved,  the  offense  rises  in  point  of  guilt  to  murder 
in  the  first  degree.  If  the  fact  of  malice  be  disproved  it  descends 
to  manslaughter.  If  unlawfulness  is  excluded,  the  act  passes  out 
of  the  dominion  of  crime  altogether.  Does  the  evidence  mitigate 
or  aggravate  the  grade  of  the  crime  which  the  law  infers  from  the 
fact  of  the  homicide  ?  To  this  question  I  invite  your  attention. 

I  am  persuaded  that  the  evidence  shows  the  act  to  have  been 


368  MODERN  JURY  TRIALS. 

deliberate.  It  proves  premeditation.  The  defendant  deliberately 
selected  the  deadly  weapon  with  which  he  committed  the  homicide, 
His  determination  to  kill  the  deceased  is  proved  by  his  declaration 
to  Judge  Carlton,  more  than  half  an  hour  before  the  fatal  act,  that 
"  that  infernal  Evans  and  I  cannot  live  in  the  same  world  together;** 
by  the  connection  he  gives  the  homicide  with  an  adequate  existing 
cause  for  malice  and  revenge,  namely:  the  seduction  of  his  daugh- 
ter ;  by  his  going  more  than  half  a  mile  in  search  of  the  deceased, 
armed  to  kill  him  ;  by  his  inquiries  concerning  him  at  his  own 
door  ;  and,  after  learning  that  he  was  in  town,  by  his  declaration 
that  he  would  see  him  there  ;  and  by  what  took  place  at  the  scene 
of  the  homicide,  after  he  had  learned  that  deceased  was  there.  It 
was  there  that  he  asked  the  deceased  the  question  :  "  Do  you 
know  my  daughter  Helen  ?  **  and  followed  it.  without  waiting  for 
an  answer,  with  the  declaration  :  "I  intend  to  kill  you."  It  is  still 
further  supported  by  the  fact  that,  when  he  had  shot  the  deceased 
down  in  his  tracks ;  and  while  he  prayed  him  to  spare  his  life,  the 
defendant  answered  him  :  "  No ;  I  am  determined  to  kill  you." 
And  last  of  all,  it  is  established  by  his  declaration  to  Glover  :  "I 
place  the  whole  matter  upon  a  point  of  honor."  But  go  back  to 
the  moment  when  he  knocked  at  the  door  of  Evans.  Does  any 
one  of  you  doubt  that  he  expected  to  meet  Evans  there  ;  or  that 
his  determination  was  then  fixed  to  kill  him,  if  he  did?  He  had 
the  fatal  knife  in  his  hand,  concealed  in  the  paper  in  which  he  had 
wrapped  it.  It  would  have  been  the  instrument  of  death  had 
Evans,  instead  of  his  wife,  opened  the  door.  If  his  malice  was 
not  premeditated,  if  he  had  not  fully  deliberated  upon  the  homi 
cide,  how  can  you  account  for  the  calm  and  unimpassioned  part  he 
took  in  the  conversation  with  the  wife  whom  he  intended,  at  the 
very  moment  of  meeting  her,  to  make  a  widow,  by  killing  her  hus- 
band upon  the  threshold  on  which  she  stood  ?  The  homicide  was 
deliberately  done  with  premeditated  malice  ;  and  the  defendant  is 
guilty  of  murder  in  the  first  degree  unless,  upon  the  whole  evi- 
dence, you  shall  have  a  reasonable  doubt  whether  he  was  not  of 
unsound  mind  when  he  committed  the  deed.  Does  the  evidence 
leave  a  reasonable  doubt  of  his  having  been,  at  that  time,  a  per- 
son of  sound  mind  ? 

I  regard  this  as  the  only  question  involved  in  the  case;  and  shall, 
therefore,  by  a  fair  analysis  of  the  evidence  bearing  upon  it, 
endeavor  to  satisfy  you  that  so  far  from  the  evidence  tending  to 
such  doubt,  the  admitted  facts  of  the  case,  and  even  those  relied 
on  by  the  defense,  are  inconsistent  with  his  guilt  and  exclude  the 
doubt  of  his  sanity. 


NEWLAND-EVANS  HOMICIDE.  369 

Before  entering  upon  this  discussion,  I  invite  your  attention  to 
the  alleged  cause  of  the  defendant's  insanity.  It  is  said  to  have 
been  the  recital  of  his  daughter's  wrongs  by  herself  the  evening  of 
her  arrival  at  home  from  the  boarding-school — the  same  evening  of 
the  homicide.  It  has  been  assumed  throughout  this  trial,  but,  I 
think,  without  any  reasonable  grounds  to  support  the  assumption, 
that  the  fact  of  his  daughter's  seduction,  the  ruin  of  his  child,  the 
disgrace  of  his  family,  and  the  shame  and  sorrow  incident  thereto, 
caused  his  excitement  and  the  overthrow  of  his  reason,  and  that  he 
must,  therefore,  be  excused.  It  has  been  said,  more  than  once  in 
the  course  of  this  trial,  that  these  considerations  affecting  the  honor 
of  his  house,  were  quite  sufficient  cause  for  insanity  on  the  part  of 
a  man  so  very  sensitive  to  shame  and  dishonor  as  the  defendant. 
But  I  am  not  persuaded  that  these  facts  are  shown  to  have  had 
any  connection  with  his  excitement — much  less  to  have  been  in 
any  degree  the  cause  of  it.  On  the  contrary,  I  hold,  and  shall 
endeavor  to  prove,  that  we  must  either  wholly  disregard  the  evi- 
dence which  the  defendant  himself  has  given,  or  attribute  that 
excitement,  or  whatever  else  it  may  be  styled,  to  a  cause  far  less 
adequate  to  its  production  ;  and  far  less  honorable  to  the  defend- 
ant. What,  then,  was  the  real  cause  of  the  shock  to  his  moral 
nature,  which  is  alleged  to  have  paralysed  his  will  and  destroyed 
his  self-control  ?  What  was  it  that  left  him  thus  irresponsible  for 
his  action  ? 

It  was  not,  gentlemen,  in  my  opinion,  the  slander  of  his  daugh- 
ter's reputation  for  chastity.  Neither  was  it  the  belief  that  she 
had  been  seduced  and  ruined.  He  had  known  that  two  weeks 
before.  Upon  receiving  the  letter  from  Bishop  Hill,  informing 
him  that  something  deeply  concerning  one  that  was  near  and  dear 
to  him,  required  his  immediate  presence  in  Terre  Haute,  he  had 
gone  thither  upon  that  errand  alone.  He  had  gone  upon  that 
information,  to  the  source  whence  the  Bishop  had  derived  the 
knowledge  that  led  him  to  write  that  letter.  He  had  even  been 
informed  of  the  condition  of  his  daughter,  by  an  anonymous  letter. 
He  thus  knew  all.  True,  it  appears  that  he  pretended  not  to 
believe  the  story  thus  told  him;  but  he  was  told,  at  the  same  time, 
that  the  faculty  of  the  school  where  she  then  was,  believed  it  to  be 
true.  Whether  he  believed  it  or  not,  the  evidence  does  not  inform 
us.  It  was,  at  all  events,  sufficient  to  have  let  him  know  that  all 
was  not  well  with  his  daughter.  It  should  have  put  him  upon 
enquiry.  Do  you  doubt  that  he  knew  it  all?  Did  he  not  at  least 
believe  it?  If  he  did  not,  how  could  lie  have  gone  home  from 
Terre  Haute,  with  the  terrible  uncertainty  rending  his  soul,  when 
24 


370  MODERN  JURY  TRIALS. 

the  means  of  learning  all — whether  the  horrible  story  was  true  or 
false — were  so  immediately  at  hand  ?  To  doubt  upon  such  a  point, 
was  more  terrible  than  the  most  horrible  certainty  itself.  How 
could  he  have  gone  home,  doubting  whether  his  darling,  daughter, 
whom  he  loved  as  the  apple  of  his  eye,  as  Judge  Carlton  has  told 
you,  was  lost  to  herself,  to  her  family,  and  to  the  world  ;  or 
whether  she  was  still  to  remain  the  pride  of  his  eye  and  the  darling 
of  his  heart  ?  If  he  loved  as  is  now  pretended,  and  as  I  am  not 
disposed  to  question,  it  is  contrary  to  nature  that  he  should  have 
so  acted,  for 

"  O,  what  damned  moments  tells  he  o'er, 
Who  doubts,  yet  dotes,  suspects,  yet  dearly  lores.  ** 

He  must  have  known  that  she  had  fallen,  or  he  must  have  held 
her  cheap  in  his  affections,  indeed.  In  her  affliction,  this  horrible 
story  did  not,  as  we  are  now  told,  even  induce  him  to  see  her, 
although  he  was  in  the  same  town  where  she  was,  upon  business 
connected  with  her  reputation.  Surely  he  could  not  so  have  acted, 
while  uncertain  in  regard  to  her  downfall.  Who  that  had  the  heart 
of  a  father  could  ?  But,  if  he  knew  that  the  story  was  true,  his  con- 
duct is  not  at  all  inconsistent  with  the  deepest  paternal  love.  In 
that  case,  his  own  good  sense  would  have  told  him  that  it  would  be 
better  to  avoid  the  scene  that  must  have  followed  their  meeting, 
until  they  could  meet  where  no  stranger's  eye  would  witness  their 
wretchedness  and  woe.  He  must  have  known  it,  therefore;  and  re- 
turned to  his  home  satisfied  of  her  downfall.  If  he  did  not  know  it, 
then  he  had  no  love  for  her,  out  of  which  the  terrible  sequel  which 
we  are  investigating  to-day  could  have  come.  I  shall,  therefore,  as 
the  most  favorable  and  merciful  conclusion  to  which  the  facts  point, 
assume  that  he  did  know  all;  or,  at  least,  that  he  did  believe  all 
that  had  been  told  him  concerning  his  daughter.  But  mark  the 
result.  Did  this  belief  produce  any  visible  effect  upon  his  manners, 
his  conversation,  or  his  life  ?  No  one  beheld  him  returning  from 
Terre  Haute  with  all  the  marks  of  excitement  and  sorrow  that 
would  have  been  stamped  upon  his  face,  if  the  theory  of  the 
defense  is  the  true  one.  No  one  saw  him  weeping  about  Bedford 
after  his  return,  in  consequence  of  his  blighted  hopes  in  his  lost 
child.  On  the  contrary,  Dr.  Smith,  his  own  witness,  informed  you 
that  he  rode  home  with  him  from  the  country  on  the  evening  of 
his  daughter's  arrival,  and  that  in  a  conversation  lasting  while  they 
rode  several  miles  together,  he  saw  no  change  in  his  manner.  He 
was  the  same  Dr.  Newland  whom  he  had  always  found  him  to  be. 
He  saw  no  symptom  of  grief,  shame,  or  insanity  about  him.  It 
was  just  about  dark  when  they  came  into  town;  and  the  evidence 


NEWLAND-EVANS  HOMICIDE.  371 

shows  that  the  first  meeting  between  him  and  Helen  t  )ok  place 
immediately  after  his  arrival.  Before  they  met,  his  wife  had  told 
him  at  the  gate  that  Helen  was  at  home.  The  question  which  he 
then  asked  his  wife,  proves  that  he  had  already  heard  all  about  her 
condition;  for,  if  he  had  not,  it  is  without  sense.  That  question 
was,  "Is  it  true?"  His  wife  informed  him  it  was  true.  Take 
that  question  and  answer,  and  reconcile  them,  if  you  can,  with  any 
other  supposition  than  the  one  that  I  have  already  adopted,  namely, 
that  he  had  heard  the  whole  story  of  his  daughter's  seduction  and 
pregnancy  when  he  was  at  Terre  Haute;  and  that  after  his  return 
from  that  city  he  and  his  wife  had  talked  it  all  over  between  them- 
selves, and  understood  it  but  too  well.  What  antecedent  can  you 
find  in  all  that  took  place  between  them  at  the  gate  for  the  pro- 
noun "  it,"  in  the  question  of  the  father,  or  the  answer  of  the 
mother  of  the  ruined  girl  ?  There  is  none,  unless  you  refer  to  their 
mutual  knowledge  of  something  that  neither  seemed  to  be  able  to 
utter  in  words.  They  each  understood  without  words  the  hateful 
antecedent  of  "it,"  in  the  question,  "Is  it  true?"  That  puts  all 
beyond  doubt.  He  had  then  borne  the  terrible  secret  of  his 
daughter's  ruin  and  shame,  in  his  own  heart,  or  shared  only  with 
the  partner  of  his  bosom,  during  the  two  weeks  that  immediately 
preceded  the  homicide;  and  no  man,  down  to  the  last  moment 
before  meeting  his  daughter,  had  been  able  to  see  any  change  in 
his  demeanor  or  appearance.  It  was  not,  then,  the  loss  of  his  child 
and  the  shame  of  his  family  that  drove  him  mad,  if,  indeed,  he  was 
mad.  He  was  able  to  stand  up  against  all  that,  and  so  bear  himself 
that  the  world  could  behold  no  signal  of  the  soul's  distress  in  his 
form  or  features.  This  being  so,  we  must  look  further  for  the 
cause  of  his  subsequent  excitement.  From  what  followed,  I  am 
led  to  believe  that  its  cause  will  not  be  found  in  the  fact  that 
Evans  was  even  the  seducer  of  the  girl.  Bad  as  that  is  assumed  to 
be — and  God  knows,  if  it  be  true,  it  is  bad  enough — it  was  still  not 
the  climax  of  the  seducer's  wrong — not  the  real  cause  of  his  excite- 
ment, and  alleged  insanity.  He  had  borne  all  that,  and  could  have 
borne  it  still.  We  must  go  further,  if  we  would  reach  the  real 
cause  of  the  terrible  outburst  of  passion,  insanity  or  crime  that  fol- 
lowed. I  shall  give  you  a  solution  of  the  difficulty  before  us  in  the 
defendant's  own  words.  They  were  spoken  in  his  own  house  the 
next  morning  after  the  homicide,  to  his  friend,  Dr.  Raridan,  and 
are  as  follows:  "I  asked  Helen  if  Evans  knew  her  condition  ?  She 
said  he  did;  and  had  written  her  a  letter  sympathizing  with  her. 
I  asked  her  if  he  had  ever  offered  her  any  assistance.  She  said  he 
had  not.  Then  fire  went  through  my  brain,  and  I  determined  to 


372  MODERN  JURY  TRIALS. 

kill  him."  Here,  then,  seems  to  be  the  explanation  of  the  motive 
upon  which  he  acted,  or  the  cause  of  his  insanity,  if  that  shall 
better  answer  the  condition  of  the  case.  He  leaves  us  to  infer 
what  he  may  have  meant  by  "assistance,"  but  he  leaver  no  room 
for  inference  that,  if  Evans  had  "  offered  her  assistance,"  he  might 
have  been,  to-day,  a  living  monument  of  his  sparing  mercy.  That 
much  is  certain.  It  is  only  necessary  for  us  to  inquire  and  find  out 
if  we  can  what  he  meant  by  "assistance."  I  have  spent  much 
thought  upon  the  inquiry,  and  have  been  led  by  every  effort  reluc- 
tantly to  the  same  ugly  conclusion.  It  could  not  have  been  money 
that  he  meant;  for  she  needed  no  such  assistance.  He,  too,  would 
have  scorned  to  receive  it  from  poor  Evans,  whose  entire  means 
would  not  have  supported  a  single  year.  Even  the  offer,  had  he 
been  both  rich  and  generous,  would  have  but  added  insult  to 
injury.  Dr.  Newland  was  not  the  man  to  think  of  pecuniary 
assistance  for  his  ruined  girl.  It  was  not  that.  Marriage  was 
always  out  of  the  question.  She  knew  that  before  she  gave  up  to 
him  the  jewel  which  alone  gave  her  life  its  value.  It  was  true 
from  the  beginning.  It  remained  true  now,  after  the  discovery  at 
the  close  of  their  lawless  love.  A  life  stood  between  them.  Mar- 
riage was  not  the  assistance,  therefore,  to  which  he  referred. 
What  then  was  it?  Was  it  concealment?  It  is  said  that  such 
things  may  be  concealed,  and  the  world  remain  ignorant  that  they 
have  ever  been;  because  crime  can  shut  the  door  in  the  face  of  dis- 
covery. Was  it  that?  I  blush  to  think  so;  but  what  else  could  it 
have  been  ?  Try,  gentlemen,  try  for  yourselves,  to  find  any  other 
"assistance"  that  could  have  been  intended;  and,  if  you  can  find 
it  in  all  the  facts  of  the  case,  in  the  name  of  mercy  and  humanity 
give  the  defendant  the  benefit  of  your  discovery.  To  me  that 
seems  to  have  been  all  he  meant — the  sum  of  his  thought,  and  the 
pivot  on  which  his  determination  to  kill  Madison  Evans  was  sus- 
pended. Had  the  question  been  answered  in  the  affirmative,  the 
result  of  the  whole  matter  might  have  been  different.  But  it  was 
answered  in  the  negative.  Then,  "fire  went  through  my  brain, 
and  I  determined  to  kill  him."  That  was  "the  point  of  honor" 
upon  which  the  matter  was  to  rest  in  all  after  time;  when  Evans 
should  sleep  in  the  "  eternal  dumbness  of  the  grave." 

Alas,  for  poor  human  nature  !  It  seems  never  to  be  able  to  raise 
itself  up  to  the  contemplation  of  true  excellence  and  goodness.  It 
seeks  rather  to  follow  the  shadow,  than  to  enjoy  the  substance — 
to  possess  the  reputation  than  the  character  of  virtue.  Thus,  for- 
ever, do  the  sad  experiences  of  life  overthrow  and  destroy  the 
golden  dreams  of  our  boyhood,  which,  born  of  enthusiasm  and 


NEWLA.ND-EVANS  HOMICIDE.  373 

hope,  made  our  existence  glad,  and  sweet  and  beautiful  as  the  gar- 
den of  God.  Not  only  do  our  experiences  banish  our  dreams ; 
they  strike  to  dust  the  ideals  which,  for  us,  brightened  and  glori- 
fied so  many  pages  of  the  world's  history.  Who  has  not  glowed 
with  admiration  and  reverence  over  the  legend  of  the  Roman 
Lucretia,  so  cruelly  ravished  by  the  infamous  son  of  Tarquin  ? 
She  was  long  the  ideal  of  my  soul  of  the  true  and  noble  woman  ; 
but,  in  the  presence  of  the  facts  revealed  to  us  to-day,  in  real  life, 
I  feel  that  I  must  give  her  up.  She,  too,  was  weak  and  frail  as  the 
rest.  Like  them  she  worshipped  the  shadow  because  it  was  cast 
upon  the  earth,  while  she  did  not  even  see  the  substance  that  lived 
above  the  reach  of  her  groveling  thoughts.  Else  why  did  she,  to 
avoid  the  reputation  of  vice  and  crime  after  death,  surrender  her- 
self at  once  to  both  and  Sextus  ?  Surely  the  true  worshipper  of 
virtue  would  have  rather  died  uncontaminated,  than  to  have  sur- 
vived its  accomplishment  in  order  to  vindicate  her  name  by  an 
explanation  that  only  told  the  world  that  not  virtue,  but  its  repu- 
tation, was  the  god  of  her  idolatry.  Why,  what  to  her  would  have 
been  the  voice  of  the  world,  if  she  had  bravely  died  to  preserve 
her  purity  ?  The  reputation,  even  of  chastity,  is  too  dearly  bought 
by  the  sacrifice  of  the  virtue  itself  ;  for  after  the  barter  it  becomes 
a  cloak  and  dupes  the  world  with  a  lie.  It  is  in  such  disguise  that 
the  brave  Lucretia  has  duped  mankind.  She  was  too  weak  to  do 
right,  and  leave  consequences  to  take  care  of  themselves.  What 
right  has  she,  then,  even  to  the  reputation  of  virtue,  since  she  sold 
the  character  to  buy  it  ?  And  the  defendant  fell  by  the  same 
weakness  into  the  same  wickedness.  Under  the  word  "assist- 
ance" lies  the  dark  admission  that  it  is  not  the  crime,  but  the 
shame  that  follows  discovery,  that  makes  crime  really  hateful. 

But  suppose  that  the  letter  of  sympathy  and  the  failure  to  offer 
assistance  drove  the  defendant  to  desperation.  There  can  be  found 
in  the  whole  evidence  nothing  else.  Tell  me,  then,  what  there  is  in 
these  to  give  rise  to  such  passion,  or  insanity,  as  is  claimed  to  have 
existed  in  the  defendant,  when  he  had  submitted  quietly  for  weeks 
under  the  full  knowledge  of  the  ruin  of  his  wretched  child  ?  And 
what,  indeed,  is  there  in  all  combined — both  what  he  had  learned 
at  Terre  Haute  and  at  home — but  a  great,  sufficient  and  just  cause 
for  anger,  resentment  and  revenge  toward  the  deceased  ?  Surely 
nothing  could  be  added  to  the  story  of  his  daughter's  seduction, 
which  he  had  borne  without  the  least  manifestation  of  excitement} 
or  insanity,  for  two  weeks,  capable  of  driving  so  immutable  a  man 
at  once  to  madnesa.  But  the  doctors  tell  us  that  his  eyes  glared, 
shined  and  flamed,  and  that  he  rushed  out  of  his  house,  tearing 


374  MODERN  JURY  TRIALS. 

himself  loose  from  his  daughter,  who  fell  senseless  upon  the  floor; 
and  that,  therefore,  it  is  their  opinion  and  judgment  that  he  was 
mad.  The  cause  of  his  madness,  however,  has  been  already  ascer- 
tained and  analyzed,  and  it  has  been  shown  that  no  argument  can 
be  deduced  from  it  at  all  to  show  that  his  madness  ever  existed.  It 
had  no  effect  upon  him  for  two  weeks;  for  it  will  not  be  contended 
that  if  the  fall  of  his  daughter  wrought  no  change  upon  him  in  the 
course  of  two  weeks,  that  the  discovery,  at  the  end  of  that  time, 
that  the  seducer  had  failed  to  offer  her  any  "assistance,"  could 
have  carried  the  defendant  at  a  single  bound  into  the  dominion  of 
insanity.  Such  a  supposition  is  not  reasonable,  and  I  do  not  believe 
it  is  true.  But  that  his  eyes  glowed  and  flamed,  and  he  rushed  vio- 
lently out  of  the  house,  "  determined  to  kill  Madison  Evans,"  con- 
stitute the  entire  sum  of  the  symptoms  of  insanity  that  he  mani- 
fested when  he  left  home.  The  state  of  his  eyes  and  his  abrupt 
departure  from  the  house  are  all  that  we  know  upon  which  to  build 
the  theory  of  his  insanity  at  that  time,  except  the  alleged  cause; 
and  that  has  been  shown  to  be  wholly  inadequate,  and,  in  fact, 
ridiculous.  His  whole  conduct  during  the  two  weeks  that  the  pre- 
tended cause  had  been  operating  upon  him  contradicts  the  pretense 
that  it  was  any  cause  at  all.  And  now,  without  any  sufficient 
cause,  a  single  feature  and  a  single  act,  each  and  both,  equally 
expressive  of  anger  as  of  insanity,  must  now  be  accepted  as  all-suf- 
ficient evidence  that  he  was  insane.  Even  that  act  and  that  feature 
are  described  to  us  by  the  fallen  girl,  the  one  witness  in  all  the 
world  likely  to  heighten  every  indication  in  her  father  that  would 
shield  him  from  the  consequences  of  the  horrible  homicide  he  had 
committed  in  revenge  of  her  real  or  imagined  wrongs.  Yet  even 
her  account  of  him  is  of  no  significance  as  proof  of  insanity.  The 
condition  and  expression  of  the  eye,  since  there  was  quite  as  much 
ground  for  anger  as  insanity,  and  it  as  fitly  expressed  the  former  as 
the  latter,  is  without  any  significance  whatever.  It  is,  I  know,  an 
important  feature  in  the  diagnosis  of  insanity — often  an  index  to 
the  condition  of  the  mind;  but  does  the  fact  that  "it  glowed  like 
fire "  authorize  us  to  conclude  that  he  was  therefore  mad  ?  The 
doctors  do,  indeed,  say  that  he  was  mad  when  he  left  the  house; 
and  yet  they  have  no  other  symptom  than  the  gleam  of  the  eye  on 
which  to  build  their  conclusion.  The  poets  and  philosophers — the 
real  leaders  of  thought  and  of  men — stand  opposed  to  the  doctors 
here.  From  Homer,  the  father  of  Greek  poetry  and  literature,  all 
the  great  poets  who  have  followed  him,  down  to  the  last  who  has 
sung  a  strain  worthy  of  his  divine  art,  are  opposed  to  our  doctors. 
The  blind  old  man  of  the  Iliad  describes  one  of  his  heroes  as  he 


NEWLA.ND-EVANS  HOMICIDE.  375 

is  forced  to  retire  before  his  victorious  foes,  and  does  not  fail  to 
note  that, 

"His  eyeballs  glowed  with  liying  fire." 

And  Collins,  too,  the  poet  of  the  passions,  whose  immortal  ode  has 
a  place  in  the  literature  of  all  languages,  not  merely  for  the  beauty 
of  its  poetry,  but  for  the  truth  of  its  description,  thus  introduces 
anger: 

"  Next  anger  rushed,  hi*  eyes  on  fire," 

giving  us,  in  this  single  line  a  full  description,  in  both  respects,  of 
the  defendant  at  the  moment  he  left  his  house;  for  "Newland 
rushed,  his  eyes  on  fire."  And  this  is  all  there  is  in  testimony 
tending  to  prove  him  insane.  A  description  of  anger,  which  sci- 
ence has  long  accepted,  is  thus  found  to  apply  literally  to  the  con- 
dition of  the  defendant.  And  yet  grave  doctors  rely  upon  these 
manifestations  of  anger  as  not  merely  evidence,  but  sufficient  proof 
of  his  insanity  ! 

I  am  here  so  fortunate  as  not  to  be  under  the  necessity  of  wholly 
relying  upon  the  poets  to  confound  the  doctors.  Their  own  author- 
ities— sworn  to  be  such  here  in  court  by  themselves — fully  support 
the  poets,  and  overthrow  them.  They  have  told  you  that  Wharton 
&  Stette's  Medical  Jurisprudence  is  a  high  authority  for  both  their 
profession  and  ours;  and  I  now  quote  it  as  fully  supporting  my 
argument  and  putting  down  their  opinion. 

[Here  Mr.  Gordon  read  a  long  quotation  from  the  book  referred 
to,  beginning  at  page  103.] 

Here,  then,  to-day  we  have  the  pupils  against  their  masters — the 
doctors  against  their  professors.  On  which  shall  we  rely  ?  Had 
the  doctors  not  sworn  to  the  book  we  might  have  failed  to  deter- 
mine; but  their  testimony  takes  away  all  difficulty,  and  gives  the 
book  a  fair  preponderance  against  them.  We  are  now  at  liberty  to 
conclude  that  these  gentlemen  played  truant  when  they  were 
students;  that  they  were  idle  boys,  and  neglected  their  lessons. 
But  if  the  poets  and  professors  be  allowed  only  to  balance  the  doc- 
tors, it  is  enough  for  our  purpose.  In  that  case,  all  difficulty  is 
removed  from  our  labor  in  respect  to  the  question  under  considera- 
tion; for  nothing  is  proved  where  the  evidence  on  the  two  sides  is 
equal.  Hence  the  old  distich  is  found  to  express  the  truth  of  the 
uase  in  hand: 

"  When  doctors  disagree, 
Disciples  then  are  free." 


376  MODERN  JURY  TRIALS. 

Having  no  guide  they  are  bound  to  respect  or  follow,  how  can  it 
be  otherwise  ?  There  is,  then,  no  proof  that  the  defendant  was 
insane  at  his  house  or  at  the  time  of  leaving  it  on  the  night  of  the 
homicide.  He  was  merely  angry;  his  anger  had  ripened  into 
revenge,  had  led  to  the  determination  of  killing  the  deceased. 

While  upon  this  point,  it  may  not  be  amiss  to  observe  that  there 
is  a  great  dissimilarity  in  the  account  given  by  the  defendant  him- 
self to  Dr.  Raridan,  of  what  took  place  between  him  and  his  daugh- 
ter before  he  left  home,  and  that  given  by  the  daughter  in  her 
testimony  here,  before  you.  The  defendant  said  nothing  about 
pushing  his  daughter  from  him,  and  rushing  from  the  house.  Yet 
he  told  Dr.  Raridan  that  he  was  telling  him  all  about  the  transac- 
tion. If  he  did  tell  him  all  about  it,  the  daughter's  story  cannot 
be  true.  What  are  we  to  believe?  I  leave  it  with  you  to  deter- 
mine. 

We  next  behold  the  defendant  in  front  of  Carlton's  drug  store. 
For  what  purpose  had  he  gone  there  ?  His  own  declarations  and 
all  the  circumstances  prove  that  he  went  there  to  see  his  friend, 
Judge  Carlton,  for  the  purpose  of  pouring  his  griefs  into  his  ear, 
and  receiving  his  friendly  consolations  and  advice.  He  remained 
there  some  time  before  Judge  Carlton  came  to  his  office;  and  while 
there  we  are  permitted  to  observe  the  tenor  of  his  bearing,  con- 
duct and  conversation,  through  the  eyes  and  ears  of  those  who  saw 
and  heard  him ;  and  from  all  that  was  there  seen  and  heard,  all  the 
doctors  concur  in  saying,  that  there  was  nothing  in  it  all  tending 
to  prove  him  insane.  His  whole  conduct  while  awaiting  the  arri- 
val of  his  friend,  Judge  Carlton,  was  perfectly  consistent  with 
sanity.  The  little  restlessness  he  manifested,  though  observed  by 
Rawlings,  with  whom  he  was  talking,  did  not  strike  him  even  as 
unusual,  or  seem  to  be  the  result  of  any  unusual  excitement,  and 
was  not  thought  of  until  after  the  announcement  of  the  homicide. 
I  submit,  therefore,  that  it  should  not  be  taken  now  as  any  evidence 
of  insanity  at  that  time.  If  the  doctors  had  concluded  otherwise 
than  they  did,  from  what  happened  there,  that  he  was  insane,  you 
could  not  have  believed  them ;  for  all  that  he  said  related  to  his 
agricultural  plans  for  the  summer — the  different  crops  he  intended 
to  cultivate  in  different  fields;  and  nothing  could  have  been  more 
•ensible  and  reasonable.  On  these  subjects  he  and  the  witness  had 
conversed  before  ;  and  this  coversation  took  up  the  former  one,  and 
carried  it  into  details.  If  from  such  a  conversation  you  should 
infer  insanity,  how  long  may  it  be  before  every  one  of  us  may  find 
himself  in  a  lunatic  asylum  for  treatment  ?  If  to  speak  reasonably 
of  one's  own  affairs  be  proof  of  insanity,  then  let  the  inmates  of 


NEWLAND-EVANS  HOMICIDE.  377 

our  asylums  change  places  with  those  who  are  wisely  engaged  in 
the  pursuits  of  common  life  ;  for  the  clearest  evidence  of  sanity  in 
such  case,  must  be  held  conslusive  proof  of  insanity.  But  before 
we  allow  ourselves  to  be  so  misled,  let  us  glance  at  the  testimony. 
Rawlins  says  that  when  he  first  came  up  to  the  defendant,  stand- 
ing on  the  pavement  in  front  of  Judge  Carlton's  office,  he  addressed 
him  thus : 

Question — "  Ben,  are  you  going  up  the  street  ?  " 

Answer — "No  ;  I  am  waiting  to  see  Carlton."  Then  followed  a 
long,  connected  and  sensible  conversation  about  farming,  which  in 
no  part  or  degree  evinced  any  mental  quality  or  state  so  much  as 
good  sense  and  sound  reason.  It  is  too  long  to  repeat  here  ;  but 
you  will  not  forget  it.  It  shuts  the  door  in  the  face  of  the  assump- 
tion that  he  was  either  insane  or  excited.  But  this  testimony  is 
strongly  reinforced  by  that  of  another  witness,  who  saw  him  lean- 
ing against  Judge  Carlton's  office.  That  is  not  an  attitude  in 
which  excitement  or  insanity  ever  displays  itself.  On  the  contrary, 
it  indicates  calmness  and  repose.  The  witness  who  saw  him  in 
this  position,  spoke  to  him  thus  : 

Question — "Doctor,  is  there  a  little  lawsuit  going  on  in  there?" 

Answer — "  I  do  not  know." 

And,  having  made  this  answer,  he  walked  away  toward  the 
street.  What  is  there  in  all  this  that  does  not  tend  to  contradict 
the  hypothesis  of  insanity — nay,  more,  that  does  not  overthrow  it  ? 

As  Judge  Carlton  came  to  his  office,  the  defendant  went  to  the 
door,  knocked  and  called  him  out ;  and  they  went  together  at  once 
directly  to  the  defendant's  own  office.  Nothing  happened  on  the 
way  to  show  that  defendant  was  not  perfectly  master  of  himself. 
There  was  no  sign  of  excitement  in  his  face  or  speech.  As  soon 
as  they  entered  his  office  defendant  struck  a  light,  and  they  seated 
themselves  close  to,  and  facing  each  other.  They  were  there  for 
consultation,  and  their  position  was  well  chosen  for  that  purpose. 
It  was  the  natural  choice  of  sane  men.  They  were  friends.  They 
knew  and  trusted  each  other  ;  and  what  was  then  about  to  take 
place  between  them,  and  did  in  fact  occur,  must  greatly  enlighten 
us  in  regard  to  the  mental  condition  of  the  defendant — the  great 
purpose  for  which  it  was  admitted  as  part  of  the  evidence  in  the 
case.  Let  us,  then,  scrutinize  their  conduct  and  conversation  with 
the  utmost  force  of  our  minds,  that  we  may  justly  estimate  the 
weight  of  the  evidence,  or  proof  which  it  contains  touching  the 
defendant's  mental  condition  at  that  time. 


878  MODERN  JURY  TRIALS. 

In  the  first  place,  it  is  manifest  from  all  that  occurred  that  th« 
object  of  the  defendant  in  taking  Judge  Oarlton  away  from  his 
office  to  his  own,  was  that  he  might  in  private  open  his  heart  to  a 
man  whom  he  both  knew  and  trusted  ;  and  who  sustained  the 
same  relations  to  life  and  society — wife,  children  and  friends — 
that  he  did  himself.  His  purpose  went  further.  He  desired  to 
take  the  advice  of  that  man  upon  the  line  of  conduct  proper  for 
him  to  pursue  under  the  melancholy  circumstances  that  sur- 
rounded him.  And,  no  doubt,  he  seeded  and  desired  his  sym- 
pathy. Behold  them,  seated  as  I  have  said,  face  to  face,  and  close 
together,  and  listen  to  the  conversation  that  follows.  They  were 
old  and  tried  friends  ;  and  had  been  for  many  years.  But  that 
friendship  was  not  a  sufficient  guarantee  to  satisfy  the  defendant 
that  he  could  safely  confide  to  it  the  awful  burden  of  his  heart. 
It  must  be  tested  anew.  He  must  re-examine  it ;  for  he  was  about 
to  make  it  the  foundation  on  which  he  proposed  to  himself  to 
build  the  weightiest  structure  that  friendship  ever  reposed  upon 
friendship.  The  process  of  re-examination  began  with  a  severe, 
searching,  probing  look,  that  went  deep  down  into  his  friend's 
heart,  as  if  to  feel  of  and  learn  the  stuff  that  it  was  made  of. 
But  that  did  not  satisfy  him.  It  was  not  enough.  He  sent  a 
question  after  that  questioning  look.  Listen,  listen,  gentlemen, 
that  you  learn  the  drift  and  connection  of  his  thoughts  :  "  Carl- 
ton,  are  you  my  friend  ?"  He  seeks  that  bed-rock  on  which  he 
may  build  the  structure  of  his  purposes.  His  foundation  must  be 
the  unshattered  granite  of  true  friendship.  He  will  trust  nothing 
else.  It  must  be  proved,  too,  before  he  will  venture  to  lay  a 
single  stone  upon  it.  His  friend  answered  him  :  "  Ben,  you  know 
I  am,  and  have  always  been  your  friend."  "That  will  do," 
thought  the  defendant,  "  I  may  plant  the  first  stone  of  my  heart's 
purposed  temple  upon  that  foundation.  And  down  it  goes.  "  Are 
you  a  father?"  That  points  upward  to  the  dome.  Back  comes 
the  answer  from  the  sustaining  foundation,  "  I  am."  It  is  brief  ; 
but  it  tells  the  defendant  he  may  lay  another  stone  upon  that 
foundation,  for  it  is  solid  still.  So,  down  it  goes.  "  Have  you  a 
daughter  ?"  The  structure  rises.  The  builder's  purpose  may  be 
almost  seen  from  what  he  has  already  done.  But  listen  to  the 
answer  upon  which  his  faith  will  still  build.  "I  have  —  my 
little  daughter  Cora  ;  you  know  her  very  well.  She  is  three 
years  old."  All  is  right  still.  The  temple  rises — is  almost  com- 
plete. In  the  eye  of  reason  it  is  so  far  perfect — without  flaw,  and 
safe  beyond  fear.  So  down  goes  another  stone  ;  and,  if  the  founda- 
tion shall  sustain  that,  he  may  stake  life,  and  honor,  and  all  upon  it 


NEWLAND-EVANS  HOMICIDE.  379 

So,  here  it  goes  :  "  What  would  you  do  if  a  man  should  seduce 
your  little  daughter,  Cora,  and  ruin  her  forever  ?"  In  this  way 
had  the  defendant  said  in  his  heart  :  "  I  will  compare  the  calm, 
unruffled  judgment  of  my  bosom  friend  with  my  own,  by  present- 
ing to  him  an  hypothesis,  very  distinctly  and  sharply  framed,  and 
exactly  similar  to  the  reality  of  my  own  sad  case,  on  which  my 
judgment  and  determination  have  already  been  formed.  If  his 
judgment  accords  with  my  own,  it  will  strengthen  my  purpose, 
and  make  my  path  plain  and  my  work  easy."  But  here,  for  the 
first  time,  the  response  does  not  support  the  purpose  of  his  mind. 
The  faithful  friend  had  been  adroitly  led  to  confront  the  gravest 
of  all  possible  questions  ;  and  he  stops  short,  saying  :  "  That  is 
a  hard  question.  But  what  is  the  meaning  of  all  this?"  This 
led  the  defendant  to  open  to  his  friend  his  own  sad  case  ;  and  he 
said  :  "  My  daughter  Helen  has  been  seduced,  and  ruined  for- 
ever. I  have  it  from  her  own  lips.  Madison  Evans  seduced  her. 
I  am  ruined  ;  Helen  is  ruined  ;  my  whole  family  is  ruined.  She 
and  I  had  better  be  dead.  I  don't  see  how  that  infernal  Evans 
and  I  can  live  in  the  same  world."  Then  said  Judge  Carlton: 
"Doctor,  for  God's  sake  use  no  violence."  And  the  defendant 
replied  :  "  I  don't  see  how  I  can  help  killing  him,  if  we  should 
meet."  Again  his  friend  told  him  he  had  better  be  calm,  go  home, 
and  go  to  sleep.  But,  again,  the  defendant  answered  :  "  How  can 
I  sleep  when  my  brain  is  on  fire  ?"  He  did,  however,  finally  become 
quiet ;  and  promised  to  keep  so  ;  and  his  friend,  agreeing  to  return 
to  him  in  a  short  time,  left  him  quiet.  But  Judge  Carlton  was 
not  entirely  satisfied  that  he  was  safe,  and  sent  his  brother  James 
to  defendant's  office  to  take  him  home,  after  first  telling  him  all 
about  his  misfortunes.  When  James  got  to  the  office,  however,  it 
was  dark,  and  as  the  door-knob  was  broken  off,  he  could  not  get 
in.  The  defendant  was  still  there,  for  he  was  heard  walking  to 
and  fro  in  the  back  room.  And  so  Mr.  Carlton  went  away  and 
left  him  there.  But  he  had  heard  enough  to  lead  him  to  fear  that 
the  life  of  Evans  was  in  danger  ;  and  he  hastened  to  his  office  to 
warn  him  of  that  danger.  But  his  office,  too,  was  dark  ;  and  he 
went  back  to  his  own  drug  store  and  thought  no  more  about  it, 
until  the  defendant  came  there  after  the  homicide  had  been  com- 
mitted. 

Here,  then,  is  the  last  scene  in  the  tragedy  in  which  it  is  pretended 
that  the  defendant  showed  any  sign  of  madness;  and  this,  so  far  as 
the  mind  is  concerned,  is  the  whole  of  it.  What  the  defendant 
told  Mr.  Dunham  forms  no  part  of  it.  That  came  from  him  after 
the  play  was  ended,  and  the  curtain  down.  It  is  more  properly, 


380  MODERN  JURY  TRIALS. 

therefore,  a  part  of  a  new  drama,  one  act  of  which  we  are  now 
playing,  than  of  the  old,  which  ended  in  blood  on  the  fifth  of 
March.  It  is  quite  as  fitly  set  in  the  second,  as  the  conversation 
between  Judge  Carlton  and  the  defendant  is  in  the  first.  To  this 
it  has  no  relation.  I  say,  then,  what  was  there  in  all  that  was  said 
and  done  in  the  defendant's  office  before  the  homicide  that  in  the 
least  degree  tends  to  show  that  he  was  insane  ?  Or,  more  appro- 
priately, what  is  there  in  it  all  that  does  not  prove  that  he  was  then 
a  sane  man,  but  angry,  revengeful,  and  fatally  bent  on  mischief 
and  murder.  Let  me  repeat  the  conversation  between  him  and 
Judge  Carlton,  that  you  may  see  how  solidly  it  adjusts  itself  to  the 
circumstances  by  which  he  was  surrounded;  and  to  his  determina- 
tion, formed  before  leaving  home,  to  kill  Madison  Evans.  Examine 
for  yourselves,  and  see  how  naturally  it  meets  all  the  requirements 
of  the  best  informed  and  most  perfect  human  reason.  If  a  single 
word  were  absent,  it  would  be  less  perfect  than  it  is;  and  whether 
we  could  tell  what  was  wanting  to  make  it  complete,  or  not,  I  am 
certain  we  should  feel  that  there  was  in  it  "some  hidden  want." 
At  the  same  time,  we  feel  that,  to  add  anything  to  it,  would  be  to 
inflict  a  blemish.  When  you  have  gone  through  it,  without  note 
or  comment,  therefore,  ask  yourselves  whether  it  is  possible  that  a 
piece  of  work  so  perfect  is  the  creation  of  a  madman  ?  But  hear 
it: 

Defendant — "Carlton,  are  you  my  friend?" 

Judge  C — "Ben,  you  know  I  am,  and  have  always  been  your 
friend." 

Defendant — "  Are  you  a  father  ?" 

Judge  C—11 1  am." 

Defendant — "  Have  you  a  daughter  ?" 

Judge  C — "I  have — my  little  daughter  Cora,  three  years  old. 
You  know  her  very  well." 

Defendant — <l  What  would  you  do  if  a  man  should  seduce  your 
little  daughter  and  ruin  her  forever  ?" 

Judge  G — "  That's  a  hard  question ;  but  what  does  all  this 
mean  ?" 

Defendant — "My  daughter  Helen  has  been  seduced,  and  ruined 
forever.  I  have  it  from  her  own  lips.  Madison  Evans  seduced  her 
when  she  was  a  little  girl.  I  am  ruined,  Helen  is  ruined;  my  whole 
family  is  ruined.  She  and  I  had  better  be  dead.  I  don't  see  how 
that  infernal  Evans  and  I  can  live  in  the  same  world." 

Judge  C — "  Doctor,  for  God's  sake,  use  no  violence." 

Defendant — "1  don't  see  how  I  can  help  killing  him,  if  we 
should  meet." 


NEWLAND-EVANS  HOMICIDE.  381 

Judge  C — "You  had  better  go  home  and  go  to  sleep." 
Defendant — "  How  can  I  sleep  when  my  brain  is  on  fire  T* 

If  human  reason  can  frame  a  more  perfect  work  than  that,  1 
should  like  to  see  it.  Every  question  is  to  the  point,  and  each  fol- 
lows the  other  as  rationally  as  if  it  grew  out  of  it.  Every  answer 
is  fitly  adjusted  to  its  question.  Both  questions  and  answers  are 
tersely  put,  and  worthy  of  a  place  in  the  permanent  literature  of 
the  language.  And  yet  we  are  to  believe  that  it  is  all  consistent 
with  homicidal  mania.  Nay,  men  of  science,  whose  lives  have  been 
devoted  to  the  great  questions  of  health  and  disease,  insist  that  it 
is  true.  Is  this,  indeed,  the  message  which  science  brings  from  her 
pale-faced  votaries  who  have  spent  their  lives  amid  the  sickly 
fumes  and  gases  of  the  laboratory  over  the  glowing  crucible;  or  in 
the  dissecting  room,  scalpel  and  microscope  in  hand,  searching  for 
light  where  there  seems  to  be  no  light,  but  "  rather  darkness  visi- 
ble;' and  for  life  and  the  laws  of  life,  where  naught  is  found  but 
death?" 

M  O,  star-eyed  science,  hast  thou  wandered  there. 
To  bring  us  back  these  tidings  of  despair?" 

At  the  office  we  lose  sight  of  the  defendant  until  he  reveals  him- 
self at  the  door  of  the  deceased.  There  he  stands  as  cool  and  calm 
as  any  man  "  that  ever  cut  a  throat  or  broke  a  skull."  Not  Wil- 
liams himself — the  man  of  bronze — who  in  1812  sent  a  pang  of 
horror  throughout  the  British  Empire  by  his  monstrous  murders, 
could  have  hushed  the  tumult  within  him,  or  tamed  his  visage 
down  to  more  perfect  calmness  and  serenity  than  did  the  defendant, 
whom  all  conceded  to  have  been,  down  to  that  moment,  a  man  of 
good  reputation  for  "peace  and  humanity."  Standing  there,  at 
the  door  of  that  house  which  he  was  so  soon  to  make  desolate,  in 
the  presence  of  that  wife  whom  he  was  prepared  even  then  and 
there  to  make  a  widow,  and  within  the  hearing  of  those  helpless 
children  whom  he  had  determined  on  that  very  spot  and  at  that 
moment,  to  have  reduced  to  the  most  miserable  orphanage — (for 
can  any  one  doubt  that  it  was  his  intention  to  have  slain  Evans  on 
his  own  door-sill,  had  he,  instead  of  his  wife  met  him  there) — he 
was  as  calm  and  placid  as  if  his  visit  had  been  one  of  peace  and 
love.  There  he  stood  before  that  wife,  so  soon  to  be  a  widow — 
the  mother  of  those  children,  so  soon  to  be  orphans — and  yet  she 
saw  no  signs  of  danger  in  his  demeanor.  Her  woman's  eye  so  pro- 
verbially sharper  to  notice  such  things  than  man's,  beheld  no  trace 
of  the  fiend  within  him,  to  warn  her  of  her  coming  woe.  Talk  not 
to  me  about  strength  of  will  after  that.  I  admit  that  the  law  is 


382  MODERN  JURY  TRIALS. 

as  read  to  yon  by  Mr.  Davis,  from  the  decision  of  the  Court  of 
Appeals  of  Kentucky.  I,  too,  say  there  must  be  capacity  to  dis- 
tinguish the  moral  question  of  actions,  to  know  right  from  wrong; 
and  freedom  of  will  to  do  that  which  is  right,  aud  avoid  that  which 
is  wrong,  or  there  is  no  moral,  or  legal  responsibility.  But  had 
not  the  defendant  made  his  choice  when  he  stood  at  that  door? 
Had  he  not  determined  what  he  would  do  ?  Had  he  not,  even  then, 
at  the  door  of  that  house  which  he  was  about  to  make  desolate 
forever,  the  most  perfect  mastery  of  his  conduct?  Had  it  been 
otherwise,  could  his  purpose  there  have  remained  undiscovered? 
Why,  had  he  been  adamant,  the  presence  of  that  mother  was 
enough  to  have  softened  him  into  flesh,  and  made  him  relent  and 
forego  his  hellish  purpose.  But  he  passed  through  it  all  unmoved 
and  unchanged;  and  left  his  victim's  wife  as  unconscious  of  her 
coming  desolation  as  the  infant  she  bore  in  her*  arms.  He 
who  could  pass  that  ordeal  need  fear  no  second  trial.  Who 
but  God  can  estimate  the  pressure  which,  in  that  awful  moment, 
his  will  must  have  exerted  upon  his  nerves,  his  emotions,  his  whole 
being — body  and  soul.  Will  you  tell  me  that  the  will  of  that  man 
had  lost  its  power  to  control  his  thoughts,  his  emotions,  his  actions  ? 
What  feature,  what  power — mental,  moral  or  physical,  of  his  whole 
being — did  not  then  obey  his  will  ?  He  had  literally  harnessed 
the  terrible  passion  of  anger,  malice  and  revenge  to  his  fell  pur- 
pose, and  made  them  the  pliant  and  obedient  ministers  of  his 
determination  to  kill  Madison  Evans.  And  so  he  left  the  woman 
whom  he  had  devoted  to  widowhood  and  woe,  and  went  to  seek 
her  husband,  for,  as  he  said,  "he  had  business  with  him." 

He  walked  away  to  the  scene  in  which  he  was  to  play  so  terrible 
a  part,  with  as  much  composure  as  if  his  thoughts  had  been 
thoughts  of  love,  and  all  his  purposes  errands  of  mercy.  It  was  a 
dark  night.  "  The  dark  places  of  the  earth  are  full  of  the  habita- 
tions of  cruelty."  But  he  went  straight  to  his  deed.  He  was  heard 
to  pass  the  house  of  Mr.  Ward.  It  was  the  half-way  place  between 
the  house  of  his  victim,  and  the  scene  of  the  homicide.  In  two 
minutes  more  his  pistol  announced  to  "  the  drowsy  ear  of  night " 
that  the  butchery  had  begun.  Its  flash  was  seen  by  one  of  the  wit- 
nesses in  the  direction  of  the  fatal  spot.  It  required  but  a  moment 
more  to  complete  the  deed,  which  had  been  determined  upon  three- 
quarters  of  an  hour  before.  And  now  it  is  accomplished.  Piteous 
God !  how  horribly  accomplished  !  Think,  gentlemen,  of  the 
meeting,  the  recognition,  the  announcement  of  the  slayer's  purpose, 
the  shot,  the  fall,  the  prayer  for  life,  the  grim  denial;  and,  then 
think  of  the  stabbing,  the  cutting  off  the  defenseless  hands;  and, 


NEWLAND-EVANS  HOMICIDE.  383 

finally,  of  the?  last  fatal  gash  in  the  neck,  serering  arteries,  nerves 
and  windpipe,  and  putting  an  end  to  life  and  all  its  blessedness  ! 
Bat  the  picture  would  be  incomplete  without  an  allusion  to  the  last 
breathings  of  the  dying  man.  Mr.  Davis  thinks  that  they  were  not 
heard — that  they  did  not  occur.  I  am  entirely  certain  that  they  did 
occur,  and  that  they  were  heard.  The  witness  could  not  have 
used  the  language  she  did,  if  she  had  not  heard  them.  Many  of 
our  soldiers  have  heard  the  same  sound,  and  it  will  live  in  the  mem- 
ory of  all  who  have  until  their  dying  day.  I  pray  God  it  may  not 
mingle  in  my  final  dreams,  nor  haunt  me  when  I  come  to  die,  with 
the  greatest  horror  of  our  last  bad  years.  The  world  has  no  other 
sound  like  it.  It  is  not  susceptible  of  a  complete  description  in 
words.  As  the  old  lady  told  you,  it  is,  indeed,  "a  gurgle;"  but  it 
is  something  more.  It  is  a  fierce,  almost  whistling,  gurgle,  as  the 
air  and  blood  are  sucked  into  the  lungs  together,  and  then  blown 
out  through  the  severed  tube,  in  the  last  fierce  struggle  for  life 
when  life  has  lost  its  means.  Think,  gentlemen,  I  beseech  you; 
think  of  all  these  horrors,  and  then  you  will  be  able  to  think  of  jus- 
tice. Let  the  man  who  went  forth  to  do  this  deed,  "  to  win  no 
cheap  reputation  for  bravery,"  in  the  words  of  Judge  Carlton; 
"but  for  a  purpose — to  kill  Madison  Evans,  because  he  had  seduced 
his  daughter;"  learn  that  such  deeds  can  not  receive  your  sanction; 
that  such  bravery  and  such  butchery  must  cease  from  the  land;  that 
it  is  not  in  this  way  that  the  true  hero  wins  his  laurels;  but  that 
shame,  everlasting  shame,  and  dishonor  must  be  its  reward.  "No 
cheap  reputation  for  bravery,"  to  be  sure!  Far,  far  away,  be  the 
evil  day  when  such  a  standard  of  courage  shall  be  raised  up  for 
our  boys  to  follow.  It  is  not  the  true  knight's  standard.  He 
scorns  all  advantage  of  sun,  or  wind,  or  rain,  or  weapon;  and  con- 
quers, or  is  conquered,  upon  an  equal  field.  But  in  all  this  revolt- 
ing and  horrible  transaction  there  is  not  a  single  trait,  or  trace,  of 
true,  manly  courage,  such  as  burns  in  the  breasts  of  "the  good  and 
the  brave."  Everything  about  it  is  one-sided.  There  is  no  fair 
play — no  sign  of  fair  play — in  it  all.  And  all  fair-minded,  just 
men  must,  in  my  opinion,  so  regard  and  condemn  it. 

Let  us  recur  to  the  transaction,  that  we  may  trace  the  moral  evi- 
dences of  self-possession,  of  reason,  and  of  the  motives  which  deter- 
mined the  judgment  and  gave  direction  to  the  will,  they  afford. 
They  are  not  difficult  to  follow. 

The  slayer,  predestined  by  his  own  determination,  has  sought  and 
found  the  victim  of  his  revenge;  for  what  else  shall  we  call  it  ? 
They  met  in  the  dark  night — no  star  looking  out  from  heaven  to 
witness  the  scene  of  outrage  and  cruelty  that  was  there  to  pass,  in 


384  MODERN  JURY  TRIALS. 

that  valley  of  death,  making  it  forever  memorable  as  a  place  of 
horrors,  until  the  school  boy  of  after  times,  who  shall  learn  the 
story,  will  feel  his  hair  rise,  and  a  strange  chill  steal  over  him  as 
he  walks  silently  by  in  the  darkling  twilight,  to  his  home. 

O,  thievish  night. 

Why  hast  thou,  but  for  some  felonious  end, 
In  thy  dark  lantern  thus  closed  up  the  Stan, 
That  nature  hung  in  heaven,  and  filled  their  lamp* 
With  everlasting  oil,  to  give  due  light 
To  the  misled  and  lonely  traveler  T 

In  the  midst  of  the  darkness  the  slayer  goes  straight  to  his  vic- 
tim. Answer  me,  now,  these  questions.  Whom  had  he  motive  to 
kill  ?  Whom  had  he  "  determined  to  kill "  before  leaving  home  ? 
Whom  had  he  prepared  himself  with  arms  to  kill  before  leaving 
his  office  ?  Whom  has  he  found  in  the  darkness  to  kill  ?  Whom 
does  he  now  kill  ?  One  name  answers  all  these  questions,  accord- 
ing to  the  evidence;  and  there  is  not  another  word  in  the  universe 
that  will  answer  any  one  of  them.  Is  all  this  chance  ?  If  it  is  the 
result  of  insanity  it  is  nothing  else.  Has  chance  made  the  name  of 
"  Madison  Evans  "  the  true  answer  to  all  these  questions,  and  made 
every  other  name  unfit  to  answer  any  one  of  them  ?  The  whole 
difficulty  of  the  case  passes  away  before  these  facts.  Why  did  he 
kill  Madison  Evans  ?  Because  he  seduced  his  daughter.  Listen  to 
his  own  sententious,  almost  epigrammatic  account  of  the  transac- 
tion. He  told  Dr.  Raridan  that  the  following  dialogue  occurred 

between  Evans  and  himself: 

« 

Defendant — "  Who  comes  there  ?  w 

Evans— "Evans." 

Defendant — "Do  you  know  my  daughter  Helen?  Yon  have 
seduced  her,  and  I  intend  to  kill  you." 

"  I  then  shot  Evans,  and  he  did  not  afterwards  rise.  He  begged 
me  not  to  kill  him;  but  I  told  him  I  intended  to  kill  him." 

In  all  this  where  do  you  find  any  symptoms  of  insanity  ?  Again, 
where  in  it  all  is  there  a  single  fact  wanting  to  make  it  complete 
as  the  work  of  a  sane  man  ?  The  doctors  agree  that  in  what 
occurred  at  the  house  of  Evans,  and  the  place  where  he  was  killed, 
there  was  no  indication  of  insanity. 

I  think  I  have  now  shown  you  that,  down  to  the  accomplishment 
of  the  homicide,  there  is  no  reason  whatever  to  infer  that  he  was 
insane  at  any  time  before  its  commission.  If  that  be  so,  then  we 
can  not  but  come  to  the  conclusion  that  he  was  a  responsible  agent 
when  he  killed  Evans;  and  is,  therefore,  guilty  of  the  offense  for 
which  he  is  on  trial  before  you. 


NEWLAND-EVANS  HOMICIDE.  385 

Before  we  leave  the  valley  of  death,  let  us  ask  ourselves  a  few 
questions.  Suppose  the  defendant  had  been  arrested  there,  what 
would  you  say  of  his  act?  Upon  all  the  facts  which  I  have  dis- 
cussed, and  I  have  considered  all  that  then  existed,  could  you  have 
come  to  any  other  conclusion  than  that  he  had  been  a  sane  man  at 
every  stage  of  the  proceeding,  from  leaving  his  home  until  the 
bloody  consummation  of  the  purpose  with  which  he  set^  forth  ? 
Tell  me  what  single  symptom  of  insanity  there  is  in  all  the  facts, 
and  groups  of  facts,  which  have  led  us,  step  by  step,  from  the 
cause  to  the  consummation  of  the  homicide  ?  And  tell  me,  again, 
what  mark  of  insanity  is  wanting  in  them  all? 

Now,  that  the  worst  has  come  to  the  worst,  he  desires  to  see  him 
again;  and  again  to  throw  himself  upon  his  sustaining  breast,  that 
he  may  regain  if  possible  his  own  strength  of  soul — now  so  sadly 
lost — by  feeling  the  kindly  heart  of  the  man  he  loved  and  trusted 
most,  beat  back  against  his  own.  To  Carlton's  office,  therefore, 
he  resolved  to  go,  and  did  go.  It  was  full  of  men — his  neighbors 
and  friends;  but  he  does  not  trust  them  with  the  story  of  the  night. 
He  knocks,  and  asks  for  Carlton  at  the  door.  He  was  not  in  ;  and 
he  sends  for  him  to  come  and  see  him,  and  with  the  message, 
information  of  the  place  at  which  he  may  be  found ;  and  where,  in 
a  few  moments  afterwards,  he  was  found  by  Mr.  Rout  and  Judge 
Carlton.  I  do  not  propose  to  dwell  upon  the  scene  at  the  jail.  It 
is  alike  consistent  with  high  passion,  or  good  acting ;  and,  as  there 
was  occasion  for  both,  it  is  unimportant  to  spend  time  in  discussing 
what  must  necessarily  be  an  immaterial  question. 

Let  us  remember,  however,  that  from  the  moment  that  the  homi- 
cide was  committed,  the  defendant  had  the  strongest  motives  in 
the  world  to  adopt  any  means  that  might  enable  him  to  escape  the 
legal  consequences  of  the  deed  he  had  done. 

There  were  but  three  doors  through  which  escape  was  possible 
for  him.  He  might  commit  suicide.  He  might  fly  the  country. 
He  might  surrender,  stand  his  trial,  plead  insanity  as  he  has  done, 
and  take  his  chances  for  a  favorable  or  an  unfavorable  verdict,  at 
the  hands  of  a  jury.  These  categories  are  exhaustive. 

I  think  his  antecedents  prove  that  suicide  was  out  of  the  question 
with  him — that  his  love  of  life,  and  of  "wife,  children  and 
friends,"  made  that  impossible  for  him.  You  will  remember  how 
he  shrunk  from  the  apparent  coming  spectre  of  the  grave,  when  he 
thought  some  years  ago  that  he  was  consumption's  victim.  Why, 
his  fears  of  death  were  then  so  great  that  he  now  brings  them  for- 
ward as  evidence  of  a  predisposition  to  insanity.  Had  he  then 
greater  reason  to  turn  away  from  the  valley  of  the  shadow  than 
2S 


386  MODERN  JURY  TRIALS. 

now  ?  To  assume  that,  is  to  build  without  a  foundation.  There 
is  no  evidence  to  support  the  assumption.  He  turned  away  from 
suicide,  feeling  if  not  saying — 

"Thus  conscience  does  make  cowards  of  us  all" 

It  was  quite  as  difficult  for  him  to  fly  this  country.  That  would 
involve  and  lose  him  all  the  interests  for  which  he  killed  his  fellow. 

* 

Family,  home,  and  even  the  "point  of  honor"  upon  which  he  had 
placed  it  in  his  own  heart,  were  all  lost  in  flight.  Flight,  too, 
would  establish  his  guilt  ;  and  from  the  first  his  chances  of  escape 
would  be  zero.  If  captured,  the  chances  of  a  favorable  verdict 
upon  any  ground  whatever  would  be  lost.  Thus,  "  in  the  lowest 
deep,  a  lower  still"  would  open  to  receive  him. 

He  may  have  reasoned  thus  :  "  I  have  killed  upon  a  motive 
that  must  appeal  strongly  to  the  sympathy  of  my  neighbors.  Can 
I  not  point  to  my  family's  wreck  and  ruin,  and  ask  them,  with 
something  more  than  a  show  of  reason:  Was  I  to  endure  all  this 
at  the  hands  of  him  who  had  wrecked  and  ruined  all  ?  May  I  not 
be  able  to  get  the  facts  before  a  jury,  and  even  ask  them  to  acquit 
me  in  the  very  teeth  of  the  law  ?  May  I  not  say," — through  Mr. 
Davis  he  has  said — "what  do  you  care,  gentlemen  of  the  jury, 
about  the  law  ?  And  if  I  can  only  get  the  jury  to  forget  their 
oath,  may  they  not  let  me  go  free?"  And,  gentlemen,  there  was 
always  a  chance  among  the  chances,  that  a  jury  might  do  it.  Mary 
Harris  had  been  acquitted,  who  had  killed  her  seducer.  Might  he 
not  feign  and  fare  as  well  ?  He  knew  a  thousand  times  more  of 
the  medico-legal  doctrines  of  insanity  than  she.  He  was  a  learned 
physician  and  surgeon,  who  knew  all  the  saws  and  soundings  of 
the  schools — all  the  symptoms  and  simulations  of  insanity — its 
illusions,  delusions  and  hallucinations.  If  ever  man  had  cause  to 
feign  insanity,  certainly  he  had.  If  ever  man  was  prepared  to 
feign,  certainly  he  was. 

Whether  moved  by  these  motives  or  not — whether  sane  or  insane, 
he  had  no  chance  to  escape  by  flight.  That  must  have  been  out  of 
the  question,  even  from  the  moment  his  necessity  seemed  to  require 
it.  Had  he  possessed  the  wisdom  of  an  angel,  he  must  have  failed, 
without  his  wings.  He  was,  therefore,  as  a  reasoning  and  reason- 
able creature,  capable  of  comprehending  his  situation,  morally 
compelled  to  front  the  great  emergency  which  his  conduct  had 
invoked.  That  he  would  front  it,  was  determined  before  he 
reached  Judge  Carlton's  office  after  the  commission  of  the  homi- 
cide. He  had  gone  further,  and  selected  the  ground  on  which  he 
proposed  to  stand.  He  had  said,  in  his  heart,  "I  will  place  it  all 


NEWLAND-EVANS  HOMICIDE.  387 

upon  a  point  of  honor."  But  that  ground  had  to  be  reconsidered, 
and  has  been  abandoned  by  the  defense  here.  They  have  gone  far 
off  from  it,  and  insist  now  that  it  shall  stand  upon  a  melancholy 
condition  of  being,  in  which 

"  Laughter  is  not  mirth,  nor  thought  the  mind." 

A  condition  of  mind  to  which  honor  and  shame,  infamy  and  fame 
are  equal ;  for  the  maniac  regards  alike,  the  hiss  of  serpent-tongued 
slander,  and  the  blast  of  the  trumpet  of  fame. 

In  considering  the  new  position  of  the  defendant — the  plea  of 
insanity — it  must,  I  think,  be  consistent  with  all  the  facts  admitted 
or  proven  in  the  cause  before  it  can  avail  him.  It  must  be  inconsis- 
tent with  all  the  essential  facts  of  the  contrary  hypothesis.  In 
other  words,  we  have  opposed  to  each  other  two  conflicting  and 
hostile  theories.  According  to  one,  the  defendant  was  sane  at  the 
time  he  committed  the  homicide.  According  to  the  other,  he  was 
insane.  Now,  my  proposition  is  that  if  either  of  these  hypotheses 
explains  and  harmonizes  all  the  facts  proven  in  the  case,  and  the 
other  does  not,  then  you  must  adopt  the  former,  and  reject  the 
latter. 

"We  have  traced  the  defendant  down  to  the  time  of  his  arrival  at 
Carlton's  law  office  with  his  hands  red,  if  not  dripping  with  human 
blood — that  blood  whose  equivalent  at  the  hands  of  the  shedder 
thereof,  God,  in  the  far  morning  of  the  world,  exacted  in  these 
solemn  words:  "Whoso  sheddeth  man's  blood,  by  man  shall  his 
blood  be  shed,"  words  which  have  lived  ever  since  in  the  hearts  of 
all  peoples,  potent  for  their  purification  and  preservation.  He 
knew  these  words.  He  knew,  also,  what  hands  were  his.  All  the 
waters  of  the  ocean  could  not  wash  them  clean  again.  *  *  *  * 

But  mark  what  follows.  Mr.  Dunham  tells  him — "I  fear,  Doc- 
tor, you  have  made  a  mistake  and  killed  the  wrong  man.  From 
what  I  hear  I  fear  you  have  killed  Col.  Williams."  "My  God  !" 
exclaimed  the  defendant,  "if  I  have  killed  Col.  Williams  I  am 
ruined  indeed  ;  for  he  was  one  of  my  best  friends.  O,  let  me  die. 
Let  me  to  the  medicines."  Is  this  evidence  of  insanity  ?  On  the 
contrary,  does  it  not  clearly  establish  his  sanity,  by  showing  that 
he  was  all  alive  to  the  relations  and  obligations  of  friendship  ;  and 
felt  most  keenly  at  the  thought  of  having  killed  a  friend  for  an 
enemy  ?  But  there  is  something  incomprehensible  in  what  Mr. 
Dunham  says  to  him  in  relation  to  the  wrong  man.  What  has 
madness  to  do  with  a  "  right "  and  a  "  wrong"  man,  when  it  drives 
the  madman  forth  by  an  irresistible  impulse  to  slay  indiscrimin- 
ately whom  it  may  slay  ;  and  when  all  experience  and  science  go 


388  MODERN  JURY  TRIALS. 

to  show  that  the  blow  will  be  likely  to  fall  a  hundred  times  upon 
an  indifferent  person  to  the  slayer,  or  upon  some  of  his  nearest  and 
dearest  relatives  and  friends  before  it  will  descend  once  where 
there  exists  an  adequate  motive  to  kill  ?  Mr.  Dunham  could  not 
and  would  not  have  committed  so  great  a  folly  as  to  address  such 
a  remark  to  an  insane,  "  raving  maniac  ;"  and,  if  the  defendant 
had  been  insane,  the  announcement  of  Mr.  Dunham  that  he  feared 
"  the  wrong  man  "  had  been  done  to  death,  would  have  called  out 
from  the  defendant  no  answer  showing  that  his  mind  agreed  with 
that  of  his  friend  that  there  was  "  a  right  man  "  to  kill  and  that 
there  was  also  "  a  wrong  man  " — and  that  Col.  Williams  was  the 
latter,  and  that  Madison  Evans  was  the  former.  Indeed  the  whole 
case  shows  that  Madison  Evans  was,  in  fact,  in  the  estimation  of 
the  defendant  and  his  friends,  the  only  "  right  man  "  in  the  whole 
world.  Do  madness  and  chance  thus  select  their  victims  where 
the  sane  man's  motive  would  also  lie  ? 

"  He  said  that  he  was  ruined,  his  daughter  was  ruined,  and  that 
his  whole  family  were  daughters,  and  they  were  all  ruined."  The 
connection  of  his  thoughts  with  his  relations  and  the  consequence 
of  Helen's  fall,  is  pregnant  with  evidence  of  sanity.  The  experi. 
ence  of  the  whole  world  will  sustain  the  conclusion  which  he  draws 
from  the  premises.  Such  a  misfortune  falls  like  a  blight  upon  the 
sisters  who  share  the  name  and  blood  of  the  fallen. 

"  One  sad  losel  soils  a  name  for  aye." 


Dr.  Athon  has  said,  I  know,  that  he  remembers  the  case  of 
Hamlet's  ghost,  and  that  this,  though  differing  in  object  is  like 
that  in  kind.  He  said,  further,  that  a  person  could,  with  such  an 
illusion  before  him,  carry  on  a  conversation  with  a  person  who 
knew  nothing  of  his  disease,  and  so  demean  himself  as  to  excite 
no  suspicion  of  the  presence  of  anything  wrong.  I  questioned  the 
correctness  of  the  Doctor's  opinion  then,  and  I  still  think  he  was 
greatly  mistaken.  I  am  sure  that  Shakespeare  will  bear  me  out  in 
my  dissent  from  the  learned  Doctor.  I  will  venture  to  recite  the 
entire  passage,  from  the  entrance  of  the  ghost  until  it  disappears, 
and  leave  you  to  settle  which  is  the  more  reasonable  opinion — that 
of  the  witness  or  that  of  the  poet.  Before  I  present  the  passage 
it  is  proper  to  say  this  illusion  of  the  ghost  had  been  seen  by 
Hamlet  once  before,  and  was  not,  therefore,  so  likely  to  startle  and 
terrify,  as  at  first.  The  defendant,  on  the  other  hand,  saw  th« 
flaming  image  of  his  daughter,  for  the  first  time,  when  going 


NEWLAND-EVANS  HOMICIDE.  3£9 

from  his  office  to  the  house  of  the  deceased,  and  during  the  con- 
versation with  Mrs.  Evans.    But  here  is  the  passage  from  Hamlet : 

Ham.  A  king  of  shreds  and  patches, 

(ENTER  GHOST.] 

Save  me,  and  hover  over  me  with  your  wings, 
You  heavenly  guards  !    What  would  your  gracious  figure  f 

Queen.  Alas,  he's  mad  I 

Ham.  Do  you  not  come  your  tardy  son  to  chide. 
That,  lapsed  in  time  and  passion,  lets  go  by 
The  important  acting  of  your  dread  command  t    O,  lay  f 

Ghost.  Do  not  forget :  this  visitation 
Is  but  to  whet  thy  almost  blunted  purpose. 
But,  look,  amazement  on  thy  mother  sits : 
O,  step  between  her  and  her  fighting  soul : 
Conceit  in  weakest  bodies  strongest  works : 
Speak  to  her,  Hamlet. 

Ham.  How  is  it  with  you,  lady  t 

Queen.  Alas,  how  is  it  with  you, 
That  you  do  bend  your  eye  on  vacancy 
And  with  the  incorporal  air  do  hold  discourse  f 
Forth  at  your  eyes  your  spirits  wildly  peep; 
And  as  the  sleeping  soldiers  in  the  alarm, 
Your  bedded  hair,  like  life  in  excrements, 
Starts  up,  and  stands  on  end.    O,  gentle  son, 
Upon  the  heat  and  flame  of  thy  distemper 
Sprinkle  cool  patience.    Whereon  do  you  look  f 

Ham.  On  him,  on  nun  I  look  you,  how  pale  he  glare* 
His  form  and  cause  conjoined,  preaching  to  stones, 
Would  make  them  capable.    Do  not  look  upon  me ; 
Lest  with  this  piteous  action  you  convert 
My  stern  effects  :  then  what  I  have  to  do 
Will  want  true  colour :  tears  perchance  for  blood. 

Queen.  To  whom  do  you  speak  this  f 

Ham.  Do  you  see  nothing  there  1 

Queen.  Nothing  at  all ;  yet  all  that  is  I  see. 

Ham.  Nor  did  you  nothing  hear  f 

Queen.  No,  nothing  but  ourselves. 

Ham.  Why,  look  you  there  !  look,  how  it  steals  away  I 
My  father,  in  his  habit  as  he  lived  ! 
Look,  where  he  goes  even  now,  out  at  the  portal  I 
[EXIT  GHOST.] 

Queen.  This  is  the  very  coinage  of  your  brain, 
This  bodiless  creation  ecstacy 
Is  very  cunning  in. 

Either  the  Doctor  or  Shakespeare  is  at  fault.  The  whole  world 
of  thinkers  have  accepted  Shakespeare  as  a  standard  on  all  such 
subjects.  Shall  the  Doctor  now  dethrone  him  and  become  the  first 
among  the  sons  of  light — the  High  Priest  of  the  great  temple  of 
creation  ? 

Of  this  degree  of  homicide,  therefore,  all  the  circumstances  of 
the  case,  it  seems  to  me,  conclusively  prove  him  guilty.  Upon 
this  point  it  is  your  right  and  duty  to  consider  carefully,  all  the 
facts  and  circumstances  of  the  cause  in  their  relation  to  the  law  aa 
the  court  shall  give  it  to  you,  and  if  you  disagree  with  me  in  regard 


390  MODERN  JURY  TRIALS. 

to  the  guilt  of  the  defendant,  I  shall  not  arraign  you  at  the  bar  of 
public  or  private  opinion.  On  the  contrary,  I  shall  bow  to  your 
verdict  with  respectful  submission.  If,  however,  your  conclusions 
shall  consonant  to  my  own,  I  shall  accept  it  as  a  true  and  just 
verdict,  while  I  shall  regret  the  consequences  that  must  follow. 

Before  concluding  this  argument,  I  deem  it  highly  proper  that 
I  should  recur  to  one  subject,  which  I  would  gladly  have  omitted. 
I  allude  to  the  character  of  the  young  lady  whose  misfortune,  or 
fault,  enters  so  largely  into  the  terrible  tragedy  which  we  have 
been  called  upon  to  review.  Four  years  ago  on  the  10th  day  of 
March,  she  was  a  young  lady  of  fourteen  years  and  eight  months 
of  age.  Many  of  our  girls  in  the  west  at  that  time  of  life  are 
wives  and  mothers,  conducting  with  prudent  oversight  the  affairs 
of  their  household.  At  that  time  Miss  Newland  made  the  acquaint- 
ance of  the  deceased,  and  became  a  pupil  in  his  school.  He  was  a 
minister  of  the  gospel,  a  teacher  in  the  Sabbath  School,  and,  so  far 
as  appears  in  the  evidence,  a  man  of  faultless  propriety  in  the 
observance  of  all  the  outside  forms  of  the  Christian  religion.  She 
was  already  or  soon  became  a  member  of  the  church.  She  was  a 
bright,  intelligent  and  educated  girl.  She  must  therefore  have 
learned  from  the  public  ministrations  of  the  deceased  that  all  vice 
is  sinful  and  involves  the  soul  in  ruin.  She  could  not  have  attended 
Sunday  School  without  learning  from  the  sacred  book  that  fornica- 
tion and  adultery  are  condemned  of  God.  If,  therefore,  he  pro- 
posed any  line  of  conduct  for  her  and  himself  at  war  with  this 
knowledge,  she  knew  that  he  was  a  married  man,  and  was  furnished 
by  his  public  character  and  teaching,  no  less  than  by  her  mother's 
precepts  and  example,  with  an  answer  with  which  childhood  itself 
could  and  would  have  silenced  the  base  insinuation  or  suggestion  at 
once.  Nay,  the  example  of  the  whole  world  around  her  was  an  argu- 
ment against  vice  and  in  favor  of  virtue.  For  even  the  few  sporadic 
oases  of  vice,  which  public  opinion  everywhere  so  cruelly  lashes 
with  infamy  and  disgrace,  tended  to  support  her  and  keep  her  pure, 
if  she  was  pure  already.  Thus  the  church,  the  Sabbath  School,  the 
home  circle,  the  mother's  example,  and  that  of  the  whole  com- 
munity, as  well  as  all  the  holy  instincts  of  childhood,  would  have 
repelled,  one  would  think,  every  base  proposal,  coming  from  what- 
ever quarter,  unless,  indeed,  there  was  some  innate  inclination  on 
her  part  to  go  forth  to  meet  its  baseness.  If  she  was  smart  she 
must  have  known  the  difference  between  vice  and  virtue.  If  she 
were  pure  she  must  have  loathed  vice  and  worshipped  virtue  ;  and 
when  did  virtue  ever  abandon  her  votary  to  the  loathsome  embraces 
of  the  lewd  seducer?  It  is  not  in  the  experience  of  mankind,  and 


NEWLAND-EVANS  HOMICIDE.  391 

all  that  holy  saints,  inspired  bard  or  sage  divine  have  ever  written, 
repel  the  thought.  They  present  virtue  to  our  view  upheld  by  all 
the  powers  of  the  heavenly  hosts.  She  is  the  strongest,  fairest 
daughter  of  God,  and  ever  dwells  with  all  the  pure  in  heart 
among  the  children  of  men. 

••  So  dear  to  heaven  is  saintly  chastity, 
That  when  a  soul  is  found  sincerely  so, 
A  thousand  liveried  angels  lacquey  her, 
Driving  far  off  each  thing  of  sin  and  guilt" 

And  the  great  Shakespeare  tells  us  it  is  impossible  for  virtue  to 
fall,  no  matter  who  may  tempt  it. 

"  But  virtue  as  it  can  never  be  moved, 
Though  vice  should  court  it  in  a  shape  of  heaven, 
80  lust,  though  to  a  radiant  angel  linked, 
Will  sate  itself  in  a  celestial  bed, 
And  prey  on  garbage." 

I  had  hoped  and  intended  that  there  should  be  no  occasion  to  assail 
the  character  or  veracity  of  Miss  Helen  Newland.  It  was  to  avoid 
that  that  the  prosecution  admitted  that  she  gave  her  father  a  recital 
of  her  wrongs  and  of  the  relation  which  the  deceased  sustained  to 
them,  and  that  her  father  believed  her  statement  to  be  true.  This 
placed  the  truth  or  falsehood  of  the  statement  out  of  the  question, 
and  while,  according  to  the  decision  of  the  court,  it  deprived  us  of 
the  right  to  impeach  her  veracity,  I  now  think  the  principle  of  the 
decision  should  have  deterred  the  defense  from  insisting  upon  the 
truthfulness  of  her  narration.  It  has  not,  however  had  that  effect. 
On  the  contrary,  each  particular  circumstance  of  her  real  or  imag- 
inary seduction  has  been  insisted  upon  as  if  it  were  as  true  as  holy 
writ.  I  do  not  complain  of  the  decision.  I  only  regret  the 
course  of  the  defense,  for  it  compels  me  to  scrutinize  the  internal 
evidences  of  the  veracity  of  her  testimony.  According  to  her  own 
testimony,  she  is  now  nearly  nineteen  years  old,  and  was  four 
years  ago  as  nearly  fifteen.  She  was  a  member  of  the  church,  the 
bright  daughter  of  a  good  mother.  She  was  even  then  of  mar- 
riageable age.  She  held  a  high  place  in  social  life.  According  to 
her  statement,  she  must  have  fallen  into  vice  soon  after  that  time, 
and  kept  it  up  during  all  the  time  intervening  between  then  and 
now.  She  clothed  fornication  and  adultery  in  the  habiliments  of 
virtue,  morality  and  religion,  and  lived  in  the  hearts  of  her  parents, 
the  bosom  of  the  church,  and  the  social  circles  of  the  town  as  a 
pure,  chaste  and  religious  girl,  when  she  had  no  right  to  any  other 
character  than  that  of  a  wicked  and  vicious  woman.  She  deceived 
all  who  associated  with  her  or  were  related  to  her.  Father 


392  MODERN  JURY  TRIALS. 

mothei,  church  an!  general  society,  all  believed  her  heart  the 
shrine  of  virtue,  when,  in  fact,  it  was  the  stew  of  the  most  filthy 
passions  that  degrade  and  ruin  mankind.  What  right  has  she  now 
to  claim  the  confidence  of  the  courts  and  juries  of  the  country  ? 

Can  deception  go  farther  or  be  maintained  longer  than  she  has 
already  carried  it?  If  she  would  deceive  her  father,  her  mother 
and  the  church,  are  you  more  dear  to  her  than  they,  or  less  likely, 
if  you  give  credence  to  her  story,  to  be  deceived.  She  never  con- 
nected the  name  of  Madison  Evans  with  her  fall  until  assured  by 
her  father  that  if  she  would  give  up  the  name  of  her  seducer,  he 
would  not  drive  her  from  his  home.  The  promise  implied  a  threat 
that  if  she  did  not  he  would.  She  was  as  weak  now  in  morals  as 
before — far  weaker  in  all  the  circumstances  that  tended  to  support 
her.  Here,  then,  was  motive  quite  sufficient  to  have  appealed 
strongly  to  a  better  nature  than  she  appears  ever  to  have  possessed. 
Who  can  tell  the  effect  of  such  an  appeal  to  such  a  girl.  She  was 
an  intelligent  girl  without  moral  virtue  to  keep  her  from  walking 
in  the  paths  of  falsehood  and  fraud.  One  name  would  serve  her 
purpose  as  well  as  another.  If  she  really  loved  the  man  who  had 
seduced  her,  as  nearly  all  who  are  seduced  do,  she  had  the  most 
powerful  motive  that  ever  appeals  to  woman's  heart,  to  give  the 
name  of  another,  and  save  the  real  author  of  her  downfall  from  the 
terrible  consequences  of  her  father's  vengeance. 

This  wicked  girl,  then,  is  the  only  accuser  of  the  slaughtered 
man.  Upon  her  statement  her  father  is  prepared  to  do  a  deed  that 
must  forever  shock  the  heart  of  the  good  and  merciful.  He  hears 
the  testimony  of  his  fallen  child — fallen  long  ago,  and  fallen,  O, 
how  deeply! — hears  it  in  his  own  parlor,  in  the  absence  of  th« 
deceased,  who  is  allowed  no  day  in  court  to  be  heard  in  his  defense. 
No  witness  is  called  for  him,  and  no  doctrine  of  reasonable  doubt 
allowed  to  shield  his  name  from  as  foul  a  charge  as  can  be  brought 
against  a  good  man's  honor.  He  is  condemned  by  a  self-constitu- 
ted tribunal,  that  had  already  bribed  the  only  witness  in  the  cause, 
by  a  promise  of  protection  on  the  one  hand,  and  an  implied  threat 
of  abandonment  on  the  other.  Well  can  I  imagine  how  the  whole 
aspect  of  the  case  might  have  been  changed,  had  the  other  side 
been  heard.  I  can  conceive  the  oft-repeated  lewd  advances  on  her 
part,  thf  resistance  of  continual  temptation  on  his,  even  his  final 
triumph,  and  then  her  settled  malice  and  revenge,  for 

"  Hell  has  no  fury  like  a  woman  scorned," 

all  culminating  in  her  fall,  and  his  death,  cruelly  inflicted  upon  hez 
mere  worthless  word.  It  is  just  as  probable  that  he  had  no  coonee- 


NEWLAND-EVANS  HOMICIDE.  393 

tion  with  her  ruin  as  that  he  had;  for  her  word  can  afford  us  no 
reasonable  ground  of  probability  in  the  case.  Call  up  from  his 
grave  the  poor,  murdered  victim  of  this  strange  trial,  give  him  a 
seat  by  the  side  of  the  defendant,  and  let  him  direct  the  examina- 
tions of  the  witnesses  so  far  as  their  testimony  tends  to  his  crim- 
ination, and  who  shall  say  that  his  reputation  might  not  be  vindi- 
cated ?  The  defendant,  however,  denied  him  this  right,  which  the 
law  gives  to  all  offenders,  from  the  petty  thief  up  to  the  prowling 
midnight  murderer. 

There  is  no  other  reason;  for  the  statement  of  the  bright,  bad 
girl,  who  alone  accuses  him,  is  as  mere  fabrication  as  ever  was 
framed  to  subserve  a  failing  cause.  There  is  scarce  a  man  in  this 
community  whose  fair  fame  may  not  be  blighted  and  destroyed  in 
the  same  way.  First  sanction  his  assassination,  and  then  when  he 
is  gone  make  the  necessities  of  his  assassin  the  measure  of  his 
infamy,  and  the  foul  work  is  of  easy  accomplishment.  It  is  for  you 
to  say  whether  this  double  work  of  destruction  shall  receive  the 
sanction  of  your  verdict. 

The  cause,  so  far  as  I  am  concerned,  is  now  in  your  hands.  I 
submit  it  to  you  with  the  utmost  confidence  that  you  will  render  a 
conscientious  and  true  verdict.  If  it  shall  be  one  of  acquittal,  I 
shall  accept  it  as  your  best  judgment  upon  the  law  and  facts  of  the 
case.  I  shall  stand  by  it  and  for  it;  because  it  will  be  the  only  ver- 
dict that  the  law  authorizes,  or  allows.  It  will,  therefore,  stand  to 
us  all  as  and  for  the  law.  But  in  this  lies  the  danger  of  a  mistake. 
If  your  verdict  to-day,  or  whenever  it  shall  be  rendered,  may  lead 
to  others  like  it — may  sanction  brute  violence  and  cruel  murder,  on 
the  one  hand,  or  uphold  the  law,  and  make  life  in  all  its  relations 
secure  and  sweet,  on  the  other,  you  cannot  be  too  careful  in  your 
consideration  of  the  material  out  of  which  you  are  to  frame  it.  In 
my  opinion,  the  evidence  is  such  as  to  require  a  verdict  of  guilty, 
as  charged  in  the  indictment  against  the  defendant.  But  I  may  be 
misled  by  my  relation  to  the  cause,  and,  therefore,  have  no  quarrel 
with  those  who  do  not  agree  with  me.  I  have  endeavored  faith- 
fully to  perform  my  duty.  I  have  done  it  according  to  the  meas- 
ure of  my  ability;  and  now  surrender  it  to  you.  Take  it,  and  do 
what  you  think  justice  requires;  and  I  doubt  not  that  the  law  will 
be  vindicated,  private  life  and  honor  protected,  and  the  foundations 
of  social  order  and  good  government  rendered  secure  alike  against 
overthrow  by  violence,  on  the  one  hand,  and  the  failure  of  those 
entrusted  with  their  preservation  on  the  other,  to  perform  the 
duties  imposed  upon  them  by  the  constitution  and  laws  of  theii 
country.  Acquitted. 


394  MODERN  JURY  TRIALS. 

THE    WARD    WILL    CASE. 

Tried  at  Detroit,  November,  1876. 

The  contest  over  Captain  E.  B.  Ward's  will,  and  the  vast  sums 
involved  in  the  litigation,  as  well  as  the  eminence  of  counsel  and 
high  character  of  the  parties  and  witnesses  sworn,  will  be  clearly 
shown  in  the  extracts  of  arguments  here  given.  The  contest  lasted 
fifty-five  days,  and  continued  to  increase  in  interest  to  the  end. 

A  brief  sketch  of  the  leading  counsel  will  better  give  their  style 
of  address  and  manner  of  reaching  a  jury: 

Hon.  J.  LOGAN  CHIPMAN  has  made  the  art  of  oratory  a  study  for 
years.  Of  ripe  age  and  excellent  training,  full  of  actual  experi- 
ience,  in  a  large  city  practice,  he  has  learned  the  art  of  saying 
things  to  please,  convince  and  persuade  men.  He  deservedly  holds 
a  very  high  rank  as  a  criminal  lawyer  and  leading  advocate,  and 
although  at  present  judge  of  the  Superior  Court  of  Detroit,  he 
occasionally  appears  in  important  jury  cases.  He  has  been  City 
Attorney,  Member  of  the  Legislature,  and  received  the  nomination 
for  Congress. 

Judge  Chipman  is  a  strong  man,  medium-sized,  now  nearly  fifty, 
of  robust  frame  and  friendly  manner.  In  the  conduct  of  cases  he 
is  sagacious  and  original,  with  a  wonderful  memory,  powerful 
voice,  magnetic  face,  clear,  forcible  and  earnest  in  delivery.  While 
others  take  notes,  he  draws  pen-pictures  of  houses,  birds,  trees, 
ships,  animals  and  men,  in  crude  forms,  but  never  loses  his  inter- 
est in  the  trial,  frequently  stopping  a  witness  on  a  material  matter, 
as  if  by  accident. 

His  speech  is  full  of  quaint  surprises,  good-natured  jokes  and  quiet 
humor.  He  begins  in  a  jovial  way,  comments  on  counsel,  looks  and 
talks  to  the  empty  chairs,  draws  a  smile  from  the  jury,  turns  like 
an  athlete,  and  for  an  hour  or  more  pours  out  a  torrent  of  strong, 
logical  and  eloquent  periods,  that  move  and  convince  men. 

With  an  excellent  memory  of  facts  and  no  notes,  he  is  fluent  in 
delivery.  He  gets  hoarse  sometimes,  but  talks  right  on.  His  lan- 
guage reports  well  as  delivered,  without  the  slightest  change.  In 
his  vehemence  he  composes  correctly.  Measured  as  an  orator, 
advocate  or  logician,  he  is  of  the  first  rank.  In  a  city  like  New 
York  his  fame  would  soon  become  national. 


WARD  WILL  CASE.  395 

Hon.  WERT  DEXTER,  of  Chicago,  who  closed  for  the  defense,  is  an 
advocate  of  great  power  and  acknowledged  ability.  Large,  strong, 
plain,  about  50,  full  dark  beard  tinged  with  gray,  something  of  a 
western  appearance,  but  a  refinement  of  manner  and  diction,  with 
all  the  force  and  logic  of  a  New  England  senator — not  unlike  Mr. 
Blaine.  There  is  a  charm  in  Mr.  Dexter's  manner  and  a  singular 
music  in  his  voice  that  is  always  attractive.  He  uses  manuscript 
freely — reads  often,  but  reads  like  a  master  in  elocution.  But  once 
under  way  he  fills  Math  energy.  At  times  he  grew  tender  and 
pathetic,  and  toward  the  close  of  his  address  he  read  a  beautife-J 
extract,  entitled  "  The  Good  Aunt,"  in  a  most  touching  and  elo- 
quent manner.  The  following  extract  gives  but  an  imperfect 
glimpse  of  his  power  with  a  jury. 

Mr.  Dexter  was  ably  assisted  by  Ashley  Pond,  on  questions  of 
law,  and  by  E.  W.  Meddaugh,  Esq.,  a  celebrated  railroad  attorney, 
who  made  a  lengthy  and  effective  argument  to  the  jury. 

The  chief  feature  of  this  singular  suit  is  the  sharp  and  stinging 
contest  of  counsel,  the  powerful  appeal  of  Judge  Chipman  to  the 
jury  and  his  cutting  reply  to  Wert  Dexter,  in  the  little  episode 
reported.  It  was  a  legal  duel,  and  had  in  its  history  much  of  the 
elements  that  excite  juries  and  spectators.  The  crowd  packed  the 
court  room  constantly;  the  interest  was  intense  throughout.  The 
two-days'  speech  of  Judge  Chipman  was  delivered  without  notes. 
The  gist  of  the  action  was:  "Whether  Capt.  Ward's  belief  in 
spiritualism  and  the  influence  of  his  young  wife  were  enough  to 
create  over  him  an  undue  influence  in  making  his  last  will?" 

A  very  effective  point  was  made  by  Hon.  Theodore  Romeyn,  one 
of  Michigan's  ablest  counsel,  when  he  attempted  to  show  that  Capt. 
Ward  secured  a  divorce  in  two  weeks  from  his  invalid  wife,  mar- 
ried a  second  wife,  and  took  her  to  his  home  while  his  invalid  wife 
remained  in  ignorance  of  the  divorce  !  This  circumstance  was 
repeated  many  times  in  the  hearing  of  the  jury  by  Mr.  Romeyn, 
and  although  excluded  by  the  court,  was  kept  before  the  jury,  and 
did  very  much  in  shaping  their  verdict. 

The  trial  was  ingenious  in  other  respects;  the  skill  of  Ashley 
Pond  was  constantly  employed  with  effect  in  all  questions  of  law 
and  evidence;  the  solid  sentences  of  D.  Darwin  Hughes  were  con- 
vincing to  the  jury,  and  added  dignity  to  the  defense.  Inch  by 
inch,  all  the  ground  was  contested,  with  bitterness  and  ability, 
and  nothing  was  lacking  to  complete  a  grand  tragedy  in  real  life, 
but  strong  hands  of  counsel,  in  restraining  an  insane  son,  Henry 
Ward,  from  shooting  Mr.  Dexter  in  open  court. 


396  MODERN  JURY  TRIALS. 

In  the  passage  at  arms  between  Messrs*  Dexter  and  Chipman 
occur  some  strong  words  not  often  heard  in  court  contests.  Com- 
ing from  large  men,  they  were  at  times  startling  and  dramatic. 

"I  am  here,"  said  Mr.  Chipman,  "to  try  this  case,  to  try  it 
bravely,  serenely,  and  I  will  try  it  boldly.  I  am  here  to  call  things 
by  their  right  names,  and  if  Mrs.  Ward  has  done  wrong,  I  will  say 
that  she  has  done  wrong,  and  say  it  though  ten  thousand  devils 
interfere  !  I  want  no  vaporing;  I  make  no  threats;  but  as  God  is 
my  judge,  I  will  neither  court  a  quarrel  nor  shrink  a  responsi- 
bility ! " 

As  these  words  came  out,  with  the  fire  of  an  enraged  genius 
blazing  from  the  eye,  trembling  with  heated  anger  from  the  lip, 
piercing  and  stinging  through  the  air  with  vehement  elocution  and 
intense  delivery,  they  seemed  to  thrill  every  listener  in  the  crowded 
court  room. 

THB  CLOSING  ABGUMENT. 

HON.  J.  LOGAN  CIIIPMAN's  ADDRESS  TO  THB  JTJBT. 

Mr.  Chipman  in  opening  his  address  to  the  jury,  began  by  com- 
menting upon  Mr.  Hughes's  declaration  that  the  trial  was  a  farce, 
and  said  that  he  himself  regarded  it  rather  as  a  tragedy.  If  to  dis- 
inherit and  degrade  one's  children,  to  divorce  one's  wife,  to  crush 
out  hearts  until  they  snap,  is  a  farce,  this  trial  is;  if  they  are 
calamities,  it  is  a  most  serious  matter.  The  jury  have  not  been 
called  to  sit  here  nearly  two  months  to  play  harlequins;  they  are 
to  decide  great  principles,  that  justice  may  be  done. 

The  issue  to  be  tried  here  is,  "  Whose  will  is  this  !"  Capt. 
Ward's,  or  some  one's  else  ?  Was  Capt.  Ward  in  a  frame  of  mind 
to  make  a  will  ?  and  could  he  do  so  with  perfect  freedom  ?  The 
contestants  assail  it  as  unnatural  —  inofficious  in  the  barbarous 
Latin  jargon  of  the  bar.  It  does  not  deal  properly  with  the 
objects  of  the  testator's  bounty.  It  is  a  fallacy  and  baseless  in 
law  to  say  that  a  man  may  deal  as  he  will  with  his  property.  If 
a  will  is  unjust,  oppressive  and  calamitous  the  law  steps  in  and 
asks  why  it  is  so. 

CAPT.    WARD. 

On  the  second  day  of  last  January  a  man  dropped  dead  in  the 
streets  of  Detroit.  What  manner  of  man  he  was,  the  testimony 
has  in  some  slight  measure  disclosed.  He  had  been  a  bustling, 
active,  strong  man  of  affairs;  we  hear  of  him  in  all  directions,  hear 


WARD  WILL  CASE.  397 

of  him  in  Arizona,  South  America,  Alabama,  Louisiana,  Ohio, 
Iowa,  Canada  and  Michigan.  On  the  day  he  died  he  seemed  to  be 
in  as  good  health  as  he  ever  had  been.  What,  then,  was  the  matter 
with  him  ?  Did  he  die  because  he  was  well  ?  Not  so;  he  came  to 
the  spot  where  he  fell,  the  victim  of  disease  that  had  followed  him 
for  years;  that  had  almost  blasted  the  life  out  of  him  once  before 
coming  like  a  stroke  of  lightning.  Yet  witness  after  witness  has 
had  the  temerity  to  testify  that  he  was  as  sound  on  the  day  of  his 
death  as  he  ever  had  been  before.  Gentlemen,  he  was  not  strong 
either  in  body  or  mind,  as  he  sank  with  all  his  millions,  in  the  dust 
and  dirt  of  the  city,  dead  !  He  .left  his  millions  behind  him,  just 
as  will  all  these  rich  and  powerful  and  enterprising  men  who  have 
come  up  here  to  crush  out  two  boys  with  their  testimony.  His 
death  was  no  matter  of  chance;  the  processes  had  been  going  on 
for  weeks  and  months  and  years.  He  had  had  an  eventful  history. 
When  he  has  a  boy  he  was  at  the  island  of  Mackinac,  coming  a 
little  later  to  the  river  St.  Clair.  In  his  early  life  he  was  weak  and 
sickly,  as  his  sister  tells  you.  He  carries  in  his  veins  blood  tainted 
with  insanity — blood  which  makes  your  speculators  and  heroes  of 
Black  Friday,  and  which  shows  itself  in  acts  which  make  others 
unhappy.  He  plunged  into  a  business  of  a  most  exciting  character, 
and  as  he  comes  toward  the  close  of  his  life  we  find  him  under  an 
excitement  that  was  perfectly  marvelous,  and  the  only  wonder  is 
that  he  had  not  gone  from  us  long  before  he  did.  Speculation  of 
the  most  gigantic  kind — itself  a  cause  of  insanity — was  the  habit  of 
his  life,  and  as  he. came  to  the  period  of  his  divorce  he  seems  to  have 
accelerated  the  speed  of  his  wild  projects.  What  had  he,  at  the 
age  of  sixty-three,  to  do  in  South  America,  and  the  desert  wastes  of 
Arizona,  except  to  sink  his  money.  Was  his  the  tranquil  state  of 
mind  that  comes  to  old  age  ?  They  call  it  enterprise  !  I  tell  you 
it  was  fever — a  blind,  reckless  desire  to  keep  himself  in  action, 
because  there  was  that  in  his  mind  which  would  not  let  him  rest.  It 
was  not  judgment,  it  was  the  mere  impetus  given  by  habit; 
his  successful  ventures  were  the  faintest  glimmerings  of  his  old 
genius.  Is  it  the  fashion  of  men  generally  to  expand  at  his  time  of 
life  ?  Do  you  hear  of  Commodore  Vanderbilt  doing  so  ?  He  con- 
solidates all  his  interests,  so  that  standing  in  New  York  he  can 
keep  his  hand  upon  one  lever — not  upon  a  hundred  levers. 

WHAT   IP   THE    WILL    18    BROKEN? 

The  situation,  gentlemen,  in  case  this  will  is  set  aside,  is  a  proper 
object  for  your  consideration.  Whether  it  stands  or  falls,  the 
widow  will  be  left  a  very  rich  woman;  she  will  have  her  dower, 


398  MODERN  JUR\  TRIAiS. 

and  will  be  well  cared  for.  To  that  we  have  no  objection.  But 
we  desire  that  her  children,  as  well  as  herself,  shall  stand  in  the  dis- 
tribution of  this  estate  as  the  first  wife  and  her  children  would. 
Who  else  are  interested  ?  Miss  Emily  Ward.  But  she  has  already 
told  you,  under  oath,  that  she  has  enough — for  herself.  Capt. 
Ward  has  already  provided  for  her.  It  is  only  for  her  retainers — 
the  Octjens  and  the  Owen  children — that  she  wants  this  large 
bequest.  But  it  will  be  no  great  hardship  to  refer  them  to  their 
own  exertions.  Who  else  is  interested?  Tubal  Cain  Owen!  He 
is  interested  to  the  extent  of  ten  thousand  dollars  a  year  for  his 
services  as  executor.  Just  think  of  it!  The  four  executors  are 
interested  to  an  amount  equal  to  what  the  state  pays  its  twenty 
circuit  judges — to  more  than  it  pays  its  governor  and  the  whole 
staff  of  state  officers.  But  it  will  be  no  hardship  now  for  Owen  to 
return  to  an  obscurity  in  which  he  will  draw  no  more  rich  wills. 
Mary  Ward  will  get  her  share  of  the  estate  and  marry  the  young 
man  of  her  choice.  Henry  and  Lizzie,  incapable  of  taking  care  of 
themselves,  will  be  protected  by  the  law,  which  after  all  is  the  best 
friend  of  the  widow  and  the  orphan.  Milton  and  Charley  will  have 
their  shares,  and  will  be  enabled  to  start  upon  whatever  career  of 
honor  and  usefulness  that  awaits  them.  Are  we  asking  you  to 
stigmatize  or  oppress  anybody  ?  We  only  want  the  statutory  dis- 
position of  the  property — that  disposition  to  which  the  common 
consent  of  mankind  has  been  given,  and  which  has  been  made  ven- 
erable and  respectable  by  ages  of  usage.  If  there  is  any  hardship 
in  this  I  am  unaware  of  it.  They  say  it  is  setting  aside  the  sacred 
bequest  of  Capt.  Ward.  Mr.  Hughes  appealed  to  some  of  you  on 
the  score  of  your  gray  hairs,  and  asked  how  you  would  like  to  have 
your  wills  set  aside.  That  was  hardly  a  fair  way  of  putting  the 
matter.  It  would  have  been  fair  if  he  had  added  the  supposition 
that  you  had  done  all  the  antics  which  Capt.  Ward  has  committed — 
if  you  had  consulted  spirits  as  to  the  sanity  of  a  wife  of  many 
years,  and  had  relied  upon  them  as  he  did.  Rich  men  have  no 
patent  by  which  to  keep  their  minds  sound  and  their  souls  safe. 
This  will  is  not  that  of  Capt.  Ward  in  his  best  days.  It  is  of  a 
man,  not  the  father  of  these  children,  but  the  wreck  of  what  that 
father  once  had  been,  led  away  by  the  blandishments  of  his  religion 
and  enfeebled  by  disease.  Is  this  unkind  ?  It  is  not,  if  it  is  true. 
It  does  no  one  any  wrong.  Therefore,  there  is  no  injustice  in  ask- 
ing that  the  will  be  broken  and  the  equitable  provisions  of  the  law 
be  allowed  to  prevail. 

It  is  a  fact  to  be  dwelt  on  with  suspicion  and  inquired  into,  that 
the  will  overlooks  and  disregards  the  natural  objects  of  the  testa- 


WARD  WILL  CASE.  399 

tor's  bounty.  Where  a  will  is  unnatural  those  who  propose  it  must 
come,  with  an  excuse  in  their  hands,  and  show  you  why  it  is  so. 
Have  the  proponents  in  this  case  done  that?  Do  you  find  that 
these  boys  or  that  Mary  was  crazy  ?  Why  should  Capt.  Ward  have 
disinherited  them  and  branded  them  with  the  brand  of  insanity  ? 
We  have  shown  that  he  himself  came  from  an  insane  family,  and 
that  his  own  apprehension  of  becoming  insane  was  almost  a  mania 
with  him;  we  have  shown  him  in  his  old  age  wildly  speculating 
and  spreading  his  ventures  from  one  end  of  the  world  to  the  other; 
we  have  shown  you  the  men  who  surrounded  him  in  these  ventures, 
not  the  kind  of  men  whom  great  men  usually  call  about  them,  but 
men  like  Tubal  Cain  Owen,  like  little  Mumford,  like  little  Thomp- 
son. The  other  side  themselves  have  shown  you  that  he  was  not 
surrounded  by  men  like  Newberry,  or  Pond,  or  Meddaugh,  or  Mr. 
Joy,  or  like  that  leader  of  tho  bar,  Mr.  Hughes.  The  places  of  the 
giants  are  filled  by  the  dwarfs  !  We  have  shown  him  falling  off 
in  his  strength  to  cling  to  strong  things.  You  have  seen  him  in  the 
companionship  of  those  who  knew  him  intimately,  and  they  tell 
you,  some  willingly  and  some  not,  that  after  the  paralytic  stroke  of 
1869  he  was  not  the  man  he  had  been  before.  The  baleful  effects 
of  the  disease  that  had  blasted  him  never  left  him.  He  said  so 
himself  on  the  day  before  his  death,  and  his  sister  could  always  see 
them.  At  all  times  and  all  seasons  the  glories  of  this  new  religion 
were  on  his  tongue,  and  he  was  striving  to  make  converts.  He 
referred  the  most  trivial  affairs  of  life  to  the  spirits.  We  maintain 
what  I  believe  is  common  sense,  that  while  you  may  not  condemn 
a  man's  reason  on  account  of  his  religion,  that  you  may  take  his 
acts  in  connection  with  his  religion  as  with  anything  else,  and  make 
him  stand  or  fall  by  them.  It  is  not  that  every  spiritualist  is  crazy, 
or  that  spiritualism  is  evidence  of  an  unsound  mind,  but  that 
Ward's  conduct  under  it  showed  infirm  purpose  and  loss  of  will  and 
moral  power.  He  cast  upon  these  boys  burdens  that  older  heads 
and  stronger  shoulders  would  have  given  way  under.  He  never 
gave  them  any  choice.  He  took  mere  puny  striplings  and  said,  in 
his  heart,  "  They  shall  go  forth  and  be  giants."  It  was  wrong- 
minded  or  wicked  to  do  so.  I  have  had  to  call  your  attention  to 
the  tremendous  force  that  the  testimony  we  offered  in  regard  to 
the  divorce  would  have  had.  The  other  side  have  come  here  with 
pretensions  of  saintliness,  and  I  have  had  to  strip  the  disguise  from 
them  and  show  them  to  be  mere  seekers  after  gold.  They  have 
held  these  boys  up  here  as  moral  lepers,  and  yet  they  think  it  horrible 
that  we  should  advert  to  the  fact  that  a  young  woman,  fresh  from 
her  girlhood,  should  throw  l.urself  into  the  arms  of  a  doting  old 


400  MODERN  JURY  TRIALS. 

man.  I  have  clung  to  the  moral  sense  of  the  community,  yet  I 
have  asked  you  to  do  exact  justice  to  this  woman  and  to  these  boys 
alike.  I  need  not  tell  you  that  the  expectancy  which  surrounds 
this  case,  and  the  large  audiences  that  come  here  teach  us  that 
something  extraordinary  is  looked  for.  There  are  great  principles 
at  stake  here,  affecting  the  good  of  human  nature  and  of  your  kind. 
I  wonder  that  your  hearts  do  not  grow  sick,  and  that  you  do  not 
begin  to  believe  that  the  will  of  man  is  not  a  feather  wafted  down 
the  wind.  Still  there  is  strength  and  goodness  somewhere,  and  you 
must  not  lose  faith,  as  I  do  not,  that  the  right  shall  prove  the  bet- 
ter, and  triumphant  in  the  end.  They  appealed  to  you  in  the  name 
of  religion.  So  do  I;  in  the  name  of  religion  in  its  purest  form 
united  with  reason.  I  have  no  defense  for  the  impositions  which 
Capt.Ward  practiced  upon  himself — upon  the  form  of  belief  which  he 
entertained,  and  which  the  gentlemen  of  the  other  side  found  it 
necessary  to  accuse  the  priests  and  apostles  of  in  order  to  make  you 
think  he  did  not  entertain  it.  Spiritualists  themselves  will  tell  you 
that  his  conduct  in  regard  to  spiritualism  was  unsound;  it  was  a 
hotch-potch  of  horrors  that  clustered  around  him.  A  man  acting 
under  this  dictation  is  not  one  of  sound  and  disposing  mind.  Are 
we  to  surrender  our  society  over  to  this  sort  of  thing?  Are  we  to 
cut  loose  from  all  reason  ?  Are  we  to  go  into  the  woods  with  the 
Indians  and  think,  because  the  trees  creak  and  rustle  in  the  frosty 
night,  that  disembodied  spirits  are  begging  to  be  released  from 
imprisonment  ? 

This  case  has  passed  before  you  in  all  its  serious  aspect.  You 
have  seen  the  selfishness,  heartaches,  greed  for  money,  desire  of 
revenge,  fear,  death.  All  have  passed  before  you  like  a  horrible 
dream  ;  so  grotesque  and  painful  are  the  realities  of  this  matter. 
Are  you  to  sit  here  like  stocks  and  stones  and  be  told  you  have 
nothing  to  pass  upon  ?  We  will  leave  this  issue  to  you  with  per- 
fect confidence.  We  do  not  believe  that  a  sane,  just  man,  who 
ever  loved  his  wife  and  children,  will  hesitate  an  instant  in  saying 
that  these  children  have  been  most  cruelly  wronged  by  this  will. 
Do  not  be  afraid  of  your  warm  hearts  that  guide  you  in  the  ordi- 
nary affairs  of  life.  Counsel  have  asked  you  to  put  these  children 
in  straight-jackets  and  consign  them  to  an  asylum,  as  if  they  were 
cursed  with  the  disease  of  insanity.  I  know  it  will  not  be  in  your 
hearts  to  put  that  burden  upon  them,  knowing,  as  you  do,  what  a 
hard  thing  it  is  to  live  in  this  hard  world.  Imagine  yourselves  at 
this  age,  and  with  the  consciousness  that  you  have  sound  minds, 
and  yet  that  a  jury  has  declared  you  crazy,  for  that  is  what  the 
gentlemen  of  the  other  side  ask  you  to  do.  It  were  better  to  takt 


WARD  WILL  CASE.  401 

the  life  from  them  now  than  respond  to  the  appeals  to  find  them 
crazy  as  a  charity.  When  did  such  a  thing  become  a  charity  ? 
Gentlemen,  you  never  will  do  this  thing.  There  will  never  be  a 
jury  on  the  face  of  the  earth  that  will  so  blast  their  young  lives. 
Therefore,  I  look  to  your  doing  the  rightful  thing  in  this  case. 
With  your  strong  arms  you  will  strengthen  the  weak  ;  with  your 
kind  hearts  you  will  comfort  those  who  are  cast  down.  You  will 
say,  "  We  are  insensible  to  the  blandishments  of  wealth,  beauty 
and  eloquence,  and  will  do  right  though  the  heavens  fall."  You 
will  rectify  the  wrong  that  Capt.  Ward  did — no,  not  that  he  did, 
but  that  was  done  by  his  delusion,  his  insanity — that  was  done 
under  influence.  It  will  not  hurt  the  dead  man  to  say  that  his 
mind  was  lost,  but  to  the  living  it  would  be  a  deadly  curse.  I 
thank  you  for  the  kindness  and  attention  with  which  you  have  lis- 
tened to  me.  It  has  been  a  joy  to  me  to  speak  in  behalf  of  the 
right  and  of  justice.  I  leave  their  case  with  you.  I  bid  you  to  be 
true,  diligent  and  sympathetic.  While  you  do  justice  to  the  dead, 
do  justice  also  to  the  living.  The  dead  are  beyond  your  reach 
and  mine  ;  they  are  standing  by  a  tribunal  whose  decrees  are  infal- 
lible— where  you  and  I  must  soon  stand,  and  where  all  wrongs  to 
them  will  be  righted.  But  if  you  do  a  wrong  to  those  who  are 
living,  you  do  a  wrong  that  will  reach  down  into  the  centuries.  In 
the  name  of  God,  you  cannot  do  this.  Of  all  the  calamities  inflicted 
on  man  insanity  has  been  held  the  worst — this  placing  upon  a  sane 
man  the  badge  of  insanity.  Nothing  can  be  more  cruel  or  lasting; 
it  is  worse  than  death,  for  it  is  a  life  of  torture.  I  know  that  this 
matter  will  all  come  right,  and  that  your  true  and  manly  instincts 
will  lead  you  to  the  right  conclusion.  After  two  months  it  seems 
as  if  we  had  been  here  only  a  day.  We  have  advanced  well  in  life 
since  this  trial  began.  Think  how  quickly  the  end  comes,  and  how 
quickly  the  seed  you  sow  will  spring  up ;  and  let  it  make  you 
patient  in  deliberation.* 

During  the  progress  of  the  trial,  as  if  to  relieve  the  monotony 
of  a  somewhat  tedious  case,  the  following  spicy  contest  occurred 
between  the  leading  counsel,  and  created  no  little  excitement  and 
press  comment.  In  that  loud,  clear,  ringing  voice,  in  excellent 
command  but  a  little  bitter,  Mr.  Dexter  spoke  to  the  court  as 
follows  : 

"  Mr.  Redfield  (who  had  been  repeatedly  quoted  as  an  authority 
by  the  other  side)  is  driven  farther  into  the  fallacy  of  saying  that 

*  This  is  but  a  brief  synopsis  of  Judge  Chipman's  address  to  the  jury, 
which  occupied  two  days  in  delivery. 
26 


402  MODERN  JURY  TRIALS. 

you  can  determine  the  validity  of  the  will  by  taking  into  account 
whether  it  is  a  beneficent  spirit  or  an  evil  spirit,  and  here  the  gen- 
tleman found  it  necessary  to  tell  us  that  they  shall  prove  to  the 
jury  that  Captain  Ward,  in  making  his  will,  was  influenced  by  a 
malicious  spirit.  The  license  of  counsel  in  the  opening  of  this  case 
was  unparalleled,  and  I  did  not  suppose  it  would  be  continued  on 
an  interlocutory  question.  Propositions  are  made  that  have  no 
more  to  do  with  the  issues  we  are  here  to  try  than  the  hymns  that 
are  to  be  sung  in  the  churches  of  this  city  to-morrow.  They  have 
had  one  effect,  and  only  one  effect — to  deeply  traduce  and  grieve 
my  client,  a  most  estimable  lady  ;  but  she  bides  the  time  until  she 
shall  present  to  this  jury,  sworn  to  hold  their  judgment  in  righteous 
equipoise,  the  other  side  of  the  case.  She  stands  at  the  bar  of  the 
court  with  her  children  and  his  children,  obedient  to  his  last  wishes 
as  she  was  to  his  wishes  in  life,  and  will  defend  the  memory  of  her 
husband  and  children,  although  stigmatized  by  his  own  son.  Sup- 
pose it  should  turn  out,  when  we  come  to  the  proof,  that  after  a 
long  life  of  care  and  ineffectual  tenderness  for  these  children, 
resulting  on  their  part  in  reckless  expenditure,  dissipation,  imbe- 
cility and  incapacity  for  the  most  part,  that  the  only  course  left  was 
the  wise  and  last  act  of  his  life — to  extend  the  only  protection  pos- 
sible to  them  in  making  a  provision  so  that  their  portions  could  not 
be  wasted.  How  wicked,  how  cruel  will  these  things  then  appear 
that  have  been  said  about  Captain  Ward  and  this  lady.  They  will 
never  be  heard  from  again  in  this  cause.  They  are  inadmissible, 
based  on  no  issue,  and  have  no  lodgment  anywhere  except  on  th« 
slanderous  tongue  that  uttered  them." 

MB.  ROMEYN:  "Do  I  understand  you  to  apply  that  language 
to  me?" 

MB.  DEXTEB  :  "I  do,  sir.  Born  in  the  State  of  Michigan,  and 
familiar  with  Theodore  Romeyn's  reputation  as  a  lawyer  since  I 
first,  over  thirty  years  ago,  went  with  my  father  into  a  court  house 
in  the  city  of  Detroit,  I  am  not  at  liberty  to  lay  at  his  door  a  charge 
of  ignorance  of  law,  whatever  else  may  be  charged  against  him  ; 
and  when  Theodore  Romeyn  stated  in  the  face  of  this  court  and 
jury  that  he  should  attack  the  second  marriage  of  Captain  Ward, 
and  show  that  it  was  no  marriage,  and  show  that  this  lady  had 
submitted  to  unlawful  embraces,  and  that  her  children  and  his 
children  were  bastards,  I  say  that  the  man  who  uttered  it  well 
knew  it  had  no  place  in  these  proceedings.  I  speak  it  advisedly, 
and  I  am  accountable  for  it  here  and  at  all  times.' 


WARD  WILL  CASE.  403 

This  occasioned  a  profound  sensation,  and  Mr.  Romeyn,  in 
another  speech,  alluded  to  it  as  unprofessional! y  discourteous,  but 
in  his  argument  on  the  admission  of  the  testimony  offered,  Mr. 
Chipman  made  the  following  as  a  reply  to  it : 

"We  propose  to  submit  this  proof  to  the  jury.  We  propose, 
above  all  things,  to  do  it  serenely  and  calmly  as  if  there  be  no 
threat  or  intimation  of  a  threat  here.  We  propose  to  do  it  with 
full  consciousness  that  we  are  not  living  in  Arkansas.  We  do  it 
understanding  we  are  living  in  the  state  of  Michigan,  where  the 
duello  is  unknown,  and  where  gentlemen  do  not  condescend  to  fisti- 
cuffs. And  if  there  are  those  in  this  case  who  wish  to  invite  per- 
sonal collisions,  let  them  go  and  find  friendly  ruffians  and  brawlers 
in  our  streets  who  will  pummel  or  be  pummeled  at  an  instant's 
notice  to  the  satisfaction  of  any  gentleman  who  desires  it.  For  our 
own  part,  we  know  there  is  a  law  of  the  land  which  punishes  the 
man  who  engages  in  riots  and  brawls.  We  know  that  the  man 
who  fights  duels,  and  avers  his  responsibility  that  "he  is  answer- 
able here  or  elsewhere,"  by  sending  a  challenge  which  gentlemen 
are  expected  to  send  under  those  circumstances — is  sent  to  the 
state  prison,  and  disfranchised  of  his  rights.  As  I  said,  we  are  here 
to  enforce  the  law — not  to  break  it.  We  are  here  to  try  this  case 
serenely,  and  as  God  is  my  judge,  I  will  try  it  bravely.  While  I 
say  no  discourteous  word,  as  the  court  and  everybody  knows,  to 
any  man — while  I  will  not  turn  this  court  into  a  scene  of  wild  riot; 
while  I  will  not  introduce  here  what  is  unknown  to  us — plantation 
manners,  and  the  language  which  we  do  not  find  in  courts,  but  find 
in  places  unknown  to  courts,  before  God  Ahnighty  I  will  try  this 
case,  and  if  Mrs.  Ward  has  done  wrong  I  will  say  she  has  done 
wrong.  I  will  do  if  twice  ten  thousand  people  stand  in  my  way — 
if  twice  ten  thousand  challenges  fall,  down  here.  This  is  all  cheap 
cheap  fustian.  It  does  not  belong  here.  I  do  not  want  any  of  it.  lam 
tired  of  it — sick  of  it.  Let  us  try  this  case  calmly  and  serenely — 
we  with  our  gray  heads  and  old  faces — give  up  this  hot  blood — hot 
blood  does  not  belong  to  us — we  are  all  getting  gray  and  getting 
old.  Let  us  try  it  serenely.  If  the  objection  is  made  that  we 
shan't  go  into  this  thing  for  any  personal  reason  that  does  not 
address  itself  to  your  honor — if  vain  challenges  and  cheap  twaddle 
are  thrust  into  my  face  here,  I  remember  I  am  the  son  of  the  state 
of  Michigan,  and  live  under  the  laws  of  that  state,  but  while  I  say 
it,  as  every  man  within  the  sound  of  ray  voice  knows,  and  I  neither 
vapor  nor  boast,  I  don't  shrink  from  any  personal  responsibility. 
I  don't  recognize  the  right  of  any  man  in  open  court  to  give  a  chal' 


404  MODERN  JURY  TRIALS. 

lenge — to  try  to  intimidate  counsel.  This  is  a  land  of  free  speech 
We  are  all  equal  in  the  law,  and  by  the  help  of  Heaven  I  propose  to 
obey  the  law,  until  some  man  attacks  me,  and  then  the  law  says  I 
may  protect  myself,  and  thank  God,  I  will  do  it  as  I  always  have 
done." 

The  gravity  of  Mr.  D.  Darwin  Hughes  was  aroused  in  the  matter, 
and  he  added  the  following: 

I  am  often  pained,  your  honor,  at  evidence  of  bitterness  between 
counsel.  The  practice  of  the  law  is  a  dignified,  high  and  noble 
calling.  It  takes  years  of  patience  and  painstaking  to  acquire 
character  in  the  profession,  and  I  think  sometimes  that  one  may 
say  and  undo  in  five  minutes  that  which  will  blot  and  blur  the 
work  of  twenty  years. 

I  am  sorry  for  it;  I  regret  it;  I  deplore  personalities.  It  goes 
beyond  the  etiquette  of  true  brotherhood,  and  I  only  add  that  the 
heat  and  worry  of  the  cause,  and  not  better  nature  of  counsel,  will 
engender  harsh  words,  which  I  hope  will  pass  away;  and  I  know 
counsel  are  too  generous  to  hold  malice. 

Delivered  in  a  quiet  and  dignified  judicial  manner,  these  sen- 
tences were  strikingly  emphatic. 

Geo.  H.  Penniman  and  Geo.  H.  Prentis  were  also  counsel  in  the 
case,  and  the  latter  made  a  forcible  address  to  the  jury. 

Some  time  before  court  opened  the  court-room  was  thickly 
crowded,  scores  of  people  standing  in  the  aisles  and  along  the 
walls.  Hundreds  of  ladies  were  present,  and  the  populace  crowded 
hard  upon  the  bar.  The  venerable  Alexander  D.  FraziT,  president 
of  the  Detroit  bar,  was  present  and  shook  hands  with  Mr.  Dexter 
before  the  latter  began  his  speech.  The  judge  cautioned  all  to 
keep  quiet,  especially  those  who  sat  close  to  the  jury,  and 

Mr.  DEXTER  OPENED  His  ARGUMENT: 

ON  THE  TESTAMENTARY  RIGHT. 

If  your  Honor  please,  Gentlemen  of  the  Jury — The  right  is  con- 
ceded by  common  law  thoughout  civilized  countries  that  a  man 
should  dispose  of  his  property  as  he  sees  fit.  A  great  American 
judge  has  said  that  old  age  is  solitary,  and  often  the  only  way  in 
which  an  old  man  can  command  the  attention  to  his  infirmities 
that  they  merit;  is  this  right  of  disposition.  This  right  cannot  be 
trifled  with  in  a  particular  case,  and  yet  be  preserved,  and  you,  sit- 


WARD  WILL  CASE.  40i) 

ting  as  jurors,  are  now  to  pass  upon  the  right.  The  chief  rule 
that  I  should  impress  upon  you  is  that  you  should  determine  the 
case  according  to  the  law  and  the  evidence  ;  not  according  to  all 
that  has  been  offered  or  that  has  been  said.  You  have  undertaken 
the  difficult  task  of  rejecting  all  outside  and  irrelevant  matter, 
some  of  which  may  have  found  lodgment  in  your  minds.  Not 
only  shall  such  matters  be  excluded  from  discussion  in  the  jury- 
room,  but  it  must  not  influence  you.  If  cases  are  to  be  settled  on 
evidence  that  is  merely  offered,  courts  may  as  well  be  disbanded. 
I  shall  try  to  weed  out  much  of  what  I  think  is  of  the  character  I 
have  described.  When  I  have  done  so,  I  think  I  shall  for  the  most 
part  have  answered  the  contestants.  About  the  last  thing  said  by 
the  gentleman  who  preceded  me  was  that  we  were  afraid  of  this 
jury.  Do  you  remember  that  they  asked  that  you  be  excluded 
from  the  room  on  a  certain  occasion  when  a  law  point  was  about 
to  be  discussed  ?  I  beg  to  answer  you  that  he  was  mistaken  when 
he  made  that  statement.  I  never  had  more  confidence  in  twelve 
men  than  I  have  in  you  that  they  would  do  justice. 

OUTSIDE   ISSUES. 

The  positions  taken  by  the  contestants  amount  to  this,  (1)  that 
a  man  has  no  right  to  dispose  of  his  property  contrary  to  the  judg- 
ment of  his  neighbors,  (2)  that  Capt.  Ward  did  not  dispose  of 
his  estate  as  you  would  have  disposed  of  it  if  you  had  been  in  his 
place.  But  the  senior  counsel  for  the  contestants  had  already 
acceded  to  our  request  to  charge  that  every  man  has  a  right  to  dis- 
pose of  his  property  as  he  pleases,  so  long  as  he  does  not  interfere 
with  the  legal  rights  of  others.  I  have  marked  out  what  I  believe 
to  be  misstatements  of  the  law  by  my  opponents.  I  may  do  this 
in  a  somewhat  rambling  manner,  because  I  shall  speak  of  them  in 
the  order  in  which  I  made  memoranda  of  such  hints  as  they  were 
brought  forth.  You  will  remember  that  on  the  three  days  upon 
which  my  immediate  predecessor  spoke,  he  closed  his  argument 
each  day  with  an  implorative  that  you  do  not  brand  the  sons  of  the 
testator  with  insanity.  There  is  no  such  issue  in  the  trial.  Ought 
he  not  to  have  known  it  ?  Is  it  not  true  that  these  boys  might  be 
insane  and  the  will  broken,  or  sane  and  the  will  sustained  ?  Sup- 
pose the  jury  should  find  them  incompetent  business  men,  and  based 
their  verdict  on  that  conclusion,  do  they  stamp  them  with  insanity? 
Yet  counsel  thought  it  necessary  to  appeal  pathetically  and 
excitedly  to  your  feelings  in  an  extravagant  manner  on  this  ground, 
a  ground  that  must  be  rejected  from  the  case.  Much  of  the  first 
day  occupied  by  the  same  gentleman  was  spent  in  showing  you  thai 


406  MODERN  JURY  TRIALS. 

Capt.  Ward  was  a  spiritualist.  Has  that  been  denied  ?  It  was 
decided  by  the  court  five  weeks  ago  that  that  fact  was  of  no  signi- 
ficance, unless  connected  with  something  else  in  the  way  of  an 
undue  influence.  But  the  theory  of  their  case  was  that  spiritual- 
ism had  so  weakened  the  mind  of  Capt.  Ward  that  an  artful  lady 
had  made  it  the  instrument  of  working  upon  Capt.  Ward  to  obtain 
such  a  will  as  she  wished.  But  there  is  no  evidence  in  the  case  to 
support  that  theory.  All  that  long  day  and  a  half  of  ghost  stories 
and  sensational  pictures  has  no  place  in  the  case.  I  shall  show  you 
where  the  vile  creatures  who  have  come  here  as  witnesses  to  break 
the  will  of  Capt.  Ward  have  come  from.  I  shall  show  that  they 
have  been  bought,  and  who  bought  them.  I  join  heartily  with  the 
gentleman  in  his  denunciation  of  them  as  stale  necromancies  and 
lies  from  tophet!  Counsel  have  asked  you  to  notice  what  an  aristo- 
cratic set  we  are.  He  has  referred  to  the  presence  of  James  F. 
Joy,  and  the  money  kings  of  the  Second  National  Bank,  and  has 
asked  you  to  consider  what  debt  the  estate  owes  that  institution.  He 
might  as  well  have  made  any  other  institution.  What  evidence  of 
any  debt  was  there,  and  if  there  were  any,  what  had  it  to  do  with 
the  case  ?  How  could  it  affect  the  debt  to  sustain  the  will  ?  There 
have  been  appeals  to  you  on  the  proposition  that  we  were  oppress- 
ing the  poor.  I  have  heard  such  rhetoric  before  an  infuriated 
crowd  of  communists  who  wanted  somebody  else's  property,  but 
never  before  in  a  court  of  justice.  In  commenting  on  the  witness 
William  Harvey,  counsel  brought  in  allusions  without  support. 
They  have  talked  to  you  about  the  dead  Mrs.  Ward;  in  what  way 
can  she  be  connected  with  the  case  ?  They  tell  you  certain  facts 
can  be  proved  by  Lewis'  letters,  of  which  he  brought  great  quanti- 
ties to  the  witness-stand,  but  they  examined  these  letters  and  left 
them  untouched,  without  bringing  them  into  the  case.  They  said 
Mrs.  Ward  indulged  in  a  spiteful  manner  and  improper  expressions 
to  Kitty  Coyle.  They  are  hard  to  please.  If  she  had  remained 
silent  they  would  have  said  she  was  smitten  with  guilt.  What  she 
said  was  an  honest  rebuke  for  which  she  might  be  pardoned.  And 
yet  counsel  have  put  words  in  her  mouth  that  are  absolutely  and 
unqualifiedly  false  !  She  has  been  the  target  of  abuse;  she  has  had 
a  hard  place  in  that  household  !  The  counsel  found  it  necessary  to 
ridicule  Aunt  Emily,  based  on  another  misstatement.  She  needs 
no  defense  at  my  hands — she  who  is  universally  known,  beloved 
and  revered.  Counsel  said  he  had  never  heard  of  her  before  this 
case,  and  followed  it  up  by  saying  that  she  was  malignant  and 
malicious,  and  that  she  hated  the  boys — she  whose  whole  life  has 
been  one  of  gentle  ministration,  and  has  grown  old  among  the 


WARD  WILL  CASE.  407 

blessings  of  children  not  her  own.  They  say  she  is  in  this  case 
prosecuting  a  claim.  There  is  another  misstatement.  How  do 
they  speak  for  Mary  Ward  ?  Her  guardian  comes  and  refuses  to 
let  her  stand  among  the  contestants.  Is  not  his  judgment  as  good 
as  Milton's  as  to  her  capacity  ?  We  have  had  to  make  a  full  show- 
ing as  to  the  condition  of  the  whole  family.  Aunt  Emily  testifies 
to  apprehensions  on  the  part  of  Capt.  Ward  lest  she  should  become 
insane.  She  had  got  to  feeling,  two  years  ago,  as  if  she  was  being 
constantly  followed.  Was  not  that  a  remarkable  delusion  ?  It  was 
our  duty  to  place  it  before  you. 

Capt.  Ward  did  what  a  sensible  man  would  do  in  furnishing  his 
children  with  guardians.  He  took  for  the  infants  their  mother,  and 
for  the  others  grown  men  who  were  his  confidants.  An  unfortu- 
nate attack  has  been  made  on  Mr.  Owen,  one  of  these  trustees.  He 
tells  you  how  it  happened  that  he  received  the  largest  sum  of  the 
four  executors.  It  was  because  he  released  a  claim  he  had  for  an 
interest  he  lost  by  Capt.  Ward's  death.  And  this  lady  was  present 
and  consented  to  the  agreement.  Counsel  say  he  artfully  drew  the 
will  so  that  his  nieces  and  nephews  might  be  provided  for.  That 
has  been  reiterated  here,  under  the  authority  of  Lord  Brougham, 
eight  or  nine  times.  It  is  untrue.  The  only  thing  that  Owen  did 
do,  and  he  did  it  by  Capt.  Ward's  direction,  was  so  to  provide  for 
the  nieces  and  nephews  of  the  captain  that  in  a  certain  contingency 
the  two  children  of  the  present  Mrs.  Ward  would  be  cut  off  from 
a  part  of  the  inheritance.  Does  that  look  like  a  conspiracy  between 
herself  and  Owen? 

MISREPRESENTATIONS. 

It  is  not  only  that  facts  have  been  asserted  against  us  that 
do  not  exist,  but  qualities  of  character  also.  They  have  put  for- 
ward false  inferences.  They  say  this  lady  is  mercenary.  They  say 
the  expenses  of  this  suit  on  our  side  amount  to  $30,000.  I  do  not 
know  how  they  got  at  the  facts.  Mr.  Prentis  complains  that  we 
have  not  more  Detroit  lawyers.  I  thought  I  had  the  right  to  ask 
for  the  help  of  my  old-time  friend,  Mr.  Hughes,  who  tried  causes 
before  Mr.  Prentis  ever  looked  into  a  law  book.  But  there  might 
have  been  more  Detroit  lawyers  in  the  case.  There  might  have 
been  one  of  the  most  distinguished  and  upright  members  of  the 
Detroit  bar  taking  part  in  it,  if  he  had  not  left  it.  Every 
one  knows  that  I  speak  of  Hon.  George  V.  N.  Lothrop.  His 
absence  and  silence  speak  more  loudly  than  the  voices  of  them  who 
conduct  the  case  in  his  stead.  They  say  Mrs.  Ward  is  mercenary. 
She  offered  to  the  children  $200,000  out  of  her  own  share  to  save 


408  MODERN  JURY  TRIALS. 

this  scene — $165,000  more  than  the  sum  they  say  it  costs  her  to 
try  the  case.  Does  that  look  mercenary?  Name  one  disagreeable 
feature  in  the  case  which  they  brought  in;  not  one.  The  question 
of  Fred's  insanity  and  the  wreath-picture  in  illustration  of  it;  dis- 
graceful incidents  in  the  life  of  Milton  Ward  and  the  parentage  of 
the  children  who  are  now  in  the  care  of  Mrs,  Deming  in  Ohio. 
You  remember  their  wicked  story  that  Fred  had  killed  himself 
because  of  the  charge  of  his  illegitimacy,  when  it  appears  that  he 
killed  himself  through  self-indulgence  in  laudanum.  Kitty  Coyle 
said  the  captain  refused  Fred  money  and  charged  him  with  not 
being  his  son,  when  we  know  that  with  a  magnanimity  greater 
than  that  of  most  men,  he  gathered  the  boy  to  his  heart  and 
treated  him  as  the  other  children  were  treated. 

Now,  as  to  the  property.  I  want  to  know  if  there  is  any  worse 
property  than  60,000  acres  of  pine  land  with  homesteaders  settling 
upon  it.  They  say  the  stocks  have  depreciated.  They  have  been 
rising  in  value  ever  since  Captain  Ward  made  his  investure,  which 
was  just  after  the  panic.  The  other  side  didn't  dare  ask  Hager- 
man  what  the  mills  were  doing  at  Milwaukee;  they  had  the  officers 
of  other  establishments  and  did  not  dare  ask  them  as  to  the  condi- 
tion of  the  property  in  their  charge.  But  the  counsel  tell  you  in  a 
general  way  that  Lndington  is  all  there  is  of  it.  Now,  let  me  get 
your  attention  to  the  figures.  The  estate  is  in  good  condition,  has 
good  credit,  and  has  paid  its  debts  as  fast  as  they  became  due. 
Counselor  Chipman  says  the  stocks  left  in  the  will  of  1873  to  Mrs. 
Ward  were  subject  to  payment  of  debts,  and  there  was  a  great  deal 
of  difference  between  that  and  Ludington.  That  was  a  brilliant 
financial  idea.  All  the  property  is  subject  to  the  payment  of  the 
debts.  But  they  summoned  us  to  produce  wills,  and  being  satisfied 
that  the  will  of  1873  could  not  be  found,  they  thought  they  might 
charge  anything  upon  this  lady.  I  will  show  you  what  these  con- 
spirators have  contrived,  and  how  testimony  has  been  manufac- 
tured. Consider  the  facts  as  to  the  relative  estates  that  Mrs.  Ward 
would  receive  under  the  will,  or  without  the  will. 

Under  the  will  of  1874,  she  gets  two  mills  at  Ludington,  $20,000; 
pine  lands,  $720,000;  four  barges,  $66,000;  lumber,  logs,  etc., 
$100,000;  one-third  of  the  home  library,  $550;  one-half  of  the 
household,  $5,000;  total,  $1,092,000.  Without  the  will  she  could 
take  $1,455,000  without  dower;  that  is,  she  and  her  children  lose, 
by  the  will,  $363,000.  Is  she  mercenary?  These  facts  cannot  be 
controverted.  First  she  offers  $200,000  to  prevent  this  trial,  and 
then  she  meets  the  attack  in  obedience  to  the  wishes  of  her  hus- 
band. What  would  you  think  of  your  wife  compromising  and 


WARD  WILL  CASE.  409 

trading  over  your  grave  with  regard  to  the  property  you  had  left 
her  ?  Yet  they  seek  to  show  that  she  is  animated  by  mercenary 
motives. 

Are  we  here  in  a  court  of  justice  to  traffic  about  the  right  to 
make  a  will  ?  Of  what  use  is  the  right,  if  this  can  be  done?  The 
question  is  not  what  would  be  a  good  trade — not  what  might  be 
done — but  what  did  Capt.  Ward  do,  and  what  was  his  last  will, 
and  whether  he  had  capacity  to  make  it.  The  will  of  1873  is  the 
one  that  they  could  not  find  on  the  other  side,  and  which  was  never 
brought  in  till  Kane  and  Slade  had  left  the  stand.  It  is  the  will 
which  they  would  have  you  believe  Mrs.  Ward  wanted  to  destroy; 
the  will  which  gave  her  $250,000  more  than  the  present  one.  Let 
us  look  into  the  conspiracy,  however.  Slade  comes  here  and  lets 
you  know  that  he  could  be  brought  here  to  act  as  a  witness  for 
$2,000.  He  is  a  wart,  an  excrescence — a  pitiful  huckster  who  sits 
on  the  temple  of  justice  waiting  to  be  bought.  They  say  that  Mrs. 
Ward  went  to  New  York  with  Crabbe,  and  visited  Slade,  and  that 
he  called  her  "  Kate,"  as  she  came  into  the  room,  and  they  dwell 
on  that  with  dramatic  effect.  But  Crabbe  tells  you  that  that  inci- 
dent occurred  with  Mansfield,  and  thus  their  whole  story  falls 
through.  They  say  that  Capt.  Ward  was  influenced  with  regard 
to  Milton,  and  that  he  put  him  there  in  charge  of  an  immense  busi- 
ness in  a  bad  time  when  he  had  no  right  to  expect  him  to  succeed. 
The  time  during  which  Milton  was  there  was  the  most  favorable 
for  the  lumber  business  for  the  past  ten  years.  They  say  Ward 
and  his  son  Milton  were  friends  to  the  last  hour.  To  be  sure  they 
were  !  And  the  strongest  mark  of  this  friendship  was  the  last 
will.  Charles  became  bankrupt  to  the  amount  of  $26,000.  It 
won't  do  to  indulge  in  general  statements  that  his  father  was  try- 
ing to  speculate  on  him.  He  would  have  been  glad  to  have  left 
these  boys  as  his  successors.  He  himself  went  about  the  country 
attending  to  his  gigantic  business  affairs,  while  Charles  was  going 
about  in  a  gig  with  a  fast  horse  before,  and  a  blanket  streaming 
behind,  to  attend  races.  He  left  the  Black  Swamp  and  Milton  left 
Ludington.  The  hopes  of  their  father  were  crushed  out;  he  was 
disappointed. 

At  twenty  minutes  to  four  Mr.  Dexter  closed  for  the  day.  Two 
or  three  times  his  voice,  which  is  usually  clear  and  ringing  as  it  is 
powerful,  failed  him  a  little  and  became  hoarse  with  a  threatening 
attack  of  quinsy,  the  speaker  feared.  He  availed  himself  of  the 
judge's  suggestion  that  he  might  defer  the  remainder  of  his  argu- 
ment until  another  day. 


410  MODERN  JURY  TRIALS. 

I  wish  to  say  a  word  as  to  the  religious  faith  of  Capt.  Ward. 
It  is  not  strange  that  one  should  wish  to  peer  into  futurity.  We 
clutch  at  a  glimmer,  however  small.  The  evidence  here  shows 
Capt.  Ward  and  Jacob  M.  Howard  both  had  their  attention  called 
to  Spiritualism  and  investigated  it.  I  once  thought  Mr.  Howard 
one  of  the  elemental  powers,  so  great  was  his  intellect.  To  him 
you  entrusted  the  high  office  of  Senator.  Ward,  by  his  own 
efforts,  rose  to  such  prominence  that,  when  he  fell,  commerce 
paused  to  record  his  services.  But  the  belief  is  one  that  ought  not 
to  enter  into  an  element  to  prejudice  your  deliberations  in  this 
cause. 

The  will  is  said  to  have  been  made  under  the  influence  of  spirits. 
But  the  codicil,  made  six  months  later,  is  not  claimed  to  be  so  exe- 
cuted. And  there  are  other  bequests.  If  you  break  this  will,  you 
set  them  all  aside.  Here  are  fifteen  separate  bequests  in  all.  Have 
you  any  right  to  interfere  with  the  rest  of  them  ?  What  is  to 
become  of  little  Mabel  Ward  ?  What  of  Aunt  Emily  ?  I  hope 
that,  in  the  last  hours  of  inconceivable  solemnity,  we  may  each 
have  a  record  like  hers.  For  this  trial  has  given  me  a  living  reali- 
zation of  the  good  aunt  that  we  read  of  in  fiction  when  boys.  I  never 
expected  to  see  it  realized.  But  here  it  is;  I  have  seen  it  in  this 
noble-hearted,  motherly  woman,  faithful  to  the  end  of  life  and  long 
beyond  ;  for  her  the  wise,  the  prudent  forethought  of  a  loving 
brother  has  made  this  just  and  abundant  provision.  And  you  are 
asked  to  strike  them  down  together,  with  the  rest.  But  you  will 
not;  you  cannot,  from  any  evidence  given  in  the  cause.  I  submit, 
in  all  candor  and  reason,  there  is  no  evidence  to  set  aside  this  will. 

After  an  eloquent  closing,  the  case  was  given  to  the  jury,  who 
failed  to  agree,  standing  three  for  the  will  and  nine  against  it.  A 
compromise  was  made,  which  closed  the  contest. 


THE  BRINKLEY  CASE.  411 

THE    BKINKLEY    CASE. 

New  York,  Juno,  1873. 

This  case  created  no  little  excitement  at  the  time,  owing  to  the 
wealthy  defendant  and  handsome  plaintiff.  Mrs.  Brinkley  had  been 
an  actress  from  New  Orleans,  whose  rare  personal  charms  attracted 
the  attention  of  young  Brinkley,  while  heir-expectant  to  a  large 
estate  ;  he  won  the  affections  of  the  plaintiff  and  arranged  a  mar- 
riage while  they  were  both  boarding  at  the  same  hotel.  The  cere- 
mony was  performed  by  a  supposed  minister,  and  the  usual  bridal 
trip  taken,  and  on  returning  to  the  hotel  they  occupied  rooms,  and 
lived  as  man  and  wife — calling  each  other  such — and  had  two  chil- 
dren. After  the  death  of  Brinkley's  father,  and  the  change  of 
fortune,  he  refused  to  longer  own  his  marital  relations,  claiming 
the  marriage  was  a  myth,  and  suit  was  brought  in  one  of  the 
supreme  courts  of  New  York  for  heavy  damages. 

THE    HON.  WILLIAM   A.  BEACH. 

In  his  argument  for  the  plaintiff,  Mr.  Beach  grew  eloquent  and 
at  times  extremely  powerful  over  the  mock  marriage  and  the 
defendant's  conduct.  It  had  been  urged  with  force  that  the 
marriage  was  void  ab  initio. 

A  single  paragraph  will  show  his  style  of  reply : 

"Evidence  of  marriage; "  may  it  please  your  honor,  what  is  evi- 
dence of  marriage?  Why,  living  together,  may  it  please  your 
honor  ;  cohabiting  together,  may  it  please  your  honor;  introducing 
each  other  as  man  and  wife ;  walking  in  the  sacred  relations  as 
such;  rearing  up  children  together,  may  it  please  your  honor,  that 
going  down  into  the  valley  and  shadow  of  death  that  a  wife 
assumes  in  such  relations;  and  for  all  these  they  were  married  ; 
they  were  married  when  he  enjoyed  the  bloom  of  her  youth  and 
loving  tenderness  ;  married  when  he  drank  deep  of  her  heart's 
young  affections  ;  married  when  it  flattered  his  fancy  to  control 
her  beauty  ;  but  when  we  come  to  that  after-stage  of  life,  where 
the  fire  and  fervor  fade  from  the  eye,  and  age  comes  stealing  over 
the  features  and  dims  their  brightness,  when,  of  all  times,  mar- 
riage is  to  life  most  sacred,  when  they  should  be  leading  each  other 
hand  in  hand  down  the  western  slope  of  life's  steep  hill,  to  rest 
together  at  its  foot  in  a  long  repose  ;  just  as  they  entered  on  that 


412  MODERN  JURY  TRIALS. 

sacred  journey,  then  it  is  that  this  monster  of  humanity  seeks  to 
cast  her  off,  and  bastardize  her  children!  Not  married!  Not 
married!  WHO,  THEN,  is  MABRLED ? 

The  delivery  of  these  words  with  a  rising  inflection  with 
increased  intensity,  a  flashing  eye,  a  trembling  lip,  a  withering 
look,  a  voice  of  power  and  penetration,  seemed  to  fairly  jar  the 
building.  It  was  a  strong  burst  of  irony,  that  utterly  annihilated 
the  defendant's  theory,  and  the  bonds  of  matrimony  were  welded 
and  cemented  so  firmly  together  that  judge,  jury  and  spectator 
felt  like  saying,  of  course  they  are  married. 

Jury  gave  $15,000  damages. 


THE    TRIAL    OF    BEECHEB. 

Trial  in  Brooklyn,  January,  1876. 

The  history  of  this  singularly  interesting  trial,  that  held  the 
public  interest  of  two  continents  for  nearly  thirty  days,  is  a  volume 
in  itself.  Brief  notes  of  facts,  incidents  and  arguments,  from  th« 
public  journals,  are  all  that  space  will  permit  in  this  connection. 

The  length  of  time  occupied,  both  in  the  trial  itself  and  the 
delivery  of  arguments  by  the  distinguished  advocates,  precludes 
more  than  a  mere  mention  of  some  salient  points,  for  reference  to 
the  five  original  volumes  of  the  reported  case  in  New  York.  It  is 
by  far  the  most  celebrated  jury  trial  in  America  for  the  past  half 
century,  and  every  part  of  it  could  be  studied  with  profit  and 
advantage.  Even  did  space  permit  a  full  report  of  the  eloquent 
and  able  arguments  made,  they  are  too  voluminous  and  elaborate 
for  the  general  use  of  jury  practice. 

"  Whether  we  regard  the  nature  of  the  issue,  the  character  of 
the  parties,  the  eminence  of  the  counsel,  or  the  dramatic  incidents 
of  the  trial,  the  case  of  Theodore  Tilton  v.  Henry  Ward  Beecher 
must  be  regarded  as  one  of  the  most  remarkable  in  the  history  of 
jurisprudence.  Its  interminable  length  has  been  made  the  subject 
of  many  complaints  ;  but  no  case  so  complicated  was  ever  pushed 
to  so  speedy  a  trial.  The  charge  of  adultery  was  first  publicly 
preferred  against  Henry  Ward  Beecher  in  the  month  of  July,  1874, 


TRIAL  OP  BEECHER  413 

The  complaint  in  the  case  was  served  in  the  following  August. 
Issue  was  almost  immediately  joined,  and  trial  was  commenced  in 
January,  1875,  within  less  than  four  months  after  the  leading 
counsel  had  been  retained,  the  trial  of  the  case  has  occupied  a 
considerably  longer  time  than  was  consumed  in  the  previous  pre- 
paration for  it.  It  relates  to  transactions  extending  over  a  period 
of  five  or  six  years.  Over  250  documents  were  made  the  subject 
of  searching  inquiry  and  analysis,  and  the  proper  interpretation  of 
many  of  them  requires  no  little  amount  of  parol  testimony.  Over 
100  distinct  interviews  are  the  subject  of  inquiry,  and  in  respect  to 
many  of  them  the  sworn  testimony  of  the  witnesses  is  in  direct 
and  irreconcilable  conflict.  The  published  testimony,  printed  in 
fine  type,  fills  3,000  foolscap  pages  ;  the  report  of  the  proceedings 
will  fill  four  or  five  large  legal  volumes.  The  legal  questions 
involved  are  numerous,  complicated,  difficult,  and,  to  the  profes- 
sional mind,  interesting.  Over  150  distinct  rulings  of  the  judge  on 
points  of  law,  during  the  progress  of  the  plaintiff's  case,  were 
noted  and  digested  by  the  defendant's  counsel,  and  probably  the 
number  of  questions  raised  and  decided  during  the  defendant's  pre- 
sentation of  his  case  were  quite  as  numerous. 

Nor  has  anything  been  wanting  to  lend  dramatic  interest  to  the 
trial  itself.  The  counsel  employed  are  among  the  most  eminent 
at  the  American  bar.  On  the  one  side  Mr.  Pryor,  a  man  of  large 
erudition  and  of  a  marvelously  alert  mind  ;  Mr.  Fullerton,  deserv- 
edly famous  as  an  adept  in  all  the  arts  of  cross-examination  ;  Mr. 
Beach,  a  pungent  and  powerful  speaker.  On  the  other  side,  Mr. 
Tracy,  a  fervid  and  impassioned  orator  ;  Mr.  Porter,  who  maintains 
in  the  advocacy  of  a  case  the  calm  and  judicial  habits  of  mind 
borrowed  from  his  experience  on  the  bench  ;  Mr.  Austin  Abbott, 
pre-eminent  at  the  New  York  bar  for  his  legal  learning,  and  known 
widely  beyond  it  by  his  legal  publications,  and  whose  forecast  and 
system  have  been  conspicuous  in  the  orderly  presentation  of  the 
defendant's  case  ;  and  Mr.  Evarts,  who  to  a  reputation  already 
established  as  an  acute  and  learned  lawyer,  has  by  his  conduct  of 
this  case  added  that  of  a  master  of  the  entirely  distinct  art  of  advo- 
cacy before  a  jury.  Every  phase  of  character,  too,  needed  for 
dramatic  effect  has  been  represented  on  the  witness  stand.  Mr. 
Moulton,  sharp,  shrewd,  calmly  confident ;  Mr.  Tilton,  oratorical 
and  fluent ;  Mrs.  Moulton,  quiet,  timid,  shrinking  ;  Kate  Carey, 
the  discharged  servant-girl,  the  very  ideal  or  "  the  greatest  plague 
in  life  ; "  Bessie  Turner,  pretty,  keen-witted,  plain-spoken,  anima- 
ted and  dramatic  in  her  direct  examination — in  her  cross-examina- 
tion a  match  in  repartee  for  the  lawyers  ;  Wilkeson,  a  curious  com- 


414  MODERN  JURY  TRIALS. 

bination  of  the  newspaper  and  the  railroad  man,  in  exterior  appar- 
ently a  gentleman  of  the  old  school,  in  actual  character  a  product 
of  the  very  newest — the  spirit  of  1875  in  the  dress  and  mien  of 
1800;  Mr.  Claflin,  in  physical  and  mental  characteristics  a  fine  rep- 
resentative of  a  modern  merchant  prince ;  Mr.  Redpath,  who 
recited  his  story  as  one  who  had  come  out  of  a  cloister,  and  brought 
with  him  the  remembrance  of  an  almost  forgotten  dream ;  Mr. 
Cowley,  the  Lowell  lawyer — when  Greek  meets  Greek,  then  comes 
the  tug  of  war  ;  Mrs.  Ovington,  in  the  clearness,  the  frankness,  and 
ihe  simple-heartedness  of  her  testimony  an  almost  ideal  witness  ; 
and  last,  but  not  least,  Henry  Ward  Beecher  himself,  reciting  hia 
story  with  an  imposing  and  dramatic  eloquence  that  compelled 
alternately  laughter  and  tears  from  the  audience,  and  the  natural 
though  indecorous  applause  which  the  sternest  efforts  of  the  judge 
were  unable  entirely  to  suppress. 

Day  after  day  the  court-room  was  thronged  to  its  utmost  capacity, 
and  its  doors  besieged  by  clamorous  applicants  unable  to  gain 
admittance.  Day  after  day  the  room  allotted  to  counsel  and 
reporters,  and  even  the  judge's  bench,  was  invaded  by  clergymen, 
literary  men,  judges,  lawyers,  members  of  Congress,  ex-Governors, 
some  of  them  coming  from  as  far  north  as  Maine  and  as  far  south 
aa  Virginia,  to  look  upon  this  extraordinary  spectacle.  The  news- 
papers flung  their  doors  wide  open  to  a  larger  audience,  and  day 
after  day  surrendered  whole  pages  of  their  issues  to  a  verbatim 
report  of  the  proceedings.  These  verbatim  reports  required  a 
corps  of  writers  of  from  ten  to  twenty  on  each  of  the  larger  news- 
papers, and  required  on  each,  in  reporting  alone,  apart  from  the 
cost  of  printing  and  paper,  an  average  expenditure  of  $100  a  day. 

None  of  the  ordinary  explanations  of  human  conduct  afford  a 
key  for  the  solution  of  the  problem  presented  by  this  case.  The 
crime  of  which  Mr.  Beecher  is  accused  is,  indeed,  the  unhappily 
too  common  one  of  seduction.  But  the  accusation  preferred  against 
him  is  not  that  of  falling,  under  a  sudden  impulse  of  passion,  into 
a  sudden  and  quickly  repented  of  crime.  He  is  charged  with 
using  the  persuasive  powers  of  his  eloquence,  strengthened  by  his 
religious  influence,  to  alienate  the  affections  and  destroy  the  prob- 
ity of  a  member  of  his  church — a  devout  and  theretofore  pure- 
souled  woman,  and  the  wife  of  a  long-loved  friend.  He  is  charged 
with  continuing  the  guilty  intercourse  during  the  period  of  nearly 
a  year  and  a  half,  of  cloaking  the  crime  to  his  own  conscience  and 
to  hers  under  specious  words  of  piety,  of  invoking  first  the  Divine 
blessing  on  it,  and  then  Divine  guidance  out  of  it.  He  is  accused 
of  resorting  to  the  most  unscrupulous  measures,  first  to  crush  hii 


TRIAL  OF  BEECHER.  415 

accuser,  the  indignant  and  outraged  husband,  and  then  10  secure 
his  acquiescence  and  co-operation  in  concealing  the  crime  from  the 
public.  And,  finally,  he  is  accused  of  adding  reiterated  and  mon- 
strous perjury  to  seduction,  in  order  to  escape  the  just  conse- 
quences of  his  infamous  conduct.  If  the  accusation  preferred 
against  him  is  true,  he  is  not  merely  weak  and  wicked,  he  is  the 
basest  of  men.  And  this  charge  is  preferred  against  one  of  the 
most  eminent  of  Christian  preachers  ;  whom  the  bitterest  enmity 
has  never  before  charged  with  being  guilty  of  falsehood  or  pre- 
varication ;  one  whose  chiefest  fault  has  hitherto  been  thought  to 
be  his  culpable  outspokenness.  On  the  other  hand,  this  charge  is 
preferred  by  two  men  whose  characters  and  station  forbid  us  to 
classify  them  with  ordinary  conspirators  and  black-mailers.  If  the 
case  is  one  of  conspiracy,  it  is  a  conspiracy  which  has  no  parallel 
in  the  annals  of  the  past.  Black-mail  is  levied  ordinarily  by  irre- 
sponsible and  anonymous  blackguards.  The  accusers  in  this  case 
are  persons  of  public  reputation  and  honorable  station  in  life.  Mr. 
Tilton  is  known  to  the  public  as  a  brilliant  though  erratic  editor, 
a  respectable  poet,  a  popular  lecturer,  and  an  effective  stump-ora- 
tor ;  Mr.  Moulton  as  an  active  business  man,  and  a  member  of  one 
of  the  largest  and  best-known  firms  in  their  peculiar  department 
in  the  city  of  New  York  ;  Mrs.  Moulton  as  a  lady  to  whose  purity 
and  truthfulness,  prior  to  the  events  connected  with  this  trial,  both 
the  defendant  and  his  counsel  bear  willing  testimony  ;  and  Mr. 
Tilton,  Mr.  Moulton,  and  Mrs.  Moulton  all  swear  to  confessions  by 
Mr.  Beecher  in  absolutely  unmistakable  language. 

Thus  both  parties  to  the  suit  were  really  on  trial :  Mr.  Beecher 
for  seduction  of  an  extraordinary  and  unparalleled  character,  and 
Messrs.  Tilton  and  Moulton  for  defamation,  conspiracy  and  black- 
mail of  a  character  no  less  extraordinary.  *  * 

There  were  money  difficulties.  Mr.  Tilton  had  a  good  income, 
but  he  was  a  free  spender.  "  I  was  always  buying,"  he  says,  "  costly 
things  to  beautify  my  house — pictures,  books,  furniture,  and  other 
luxurious  frivolities  which  rich  men  can  indulge  in,  and  men  who 
are  not  rich  can  not."  The  consequence  was  that  there  was  not 
always  money  to  buy  coal  for  the  fire  nor  dresses  for  the  children, 
and  Mrs.  Tilton  was  lectured,  according  to  the  mood  of  her  hus- 
band, for  parsimony  to-day  and  for  extravagance  to-morrow. 
Stories  were  rife  that  Mr.  Tilton  more  than  once  carried  out  in 
practice  the  views  respecting  social  freedom  which  he  advocated 
in  public.  If  any  reliance  can  be  placed  upon  his  letters,  he  was 
not  wholly  faultless  in  this  regard.  The  separation  between  hus- 
band and  wife  was  a  growing  one.  An  eccentric  mother-in-law, 


416  MODERN  JURY  TRIALS. 

with  an  unhappy  temper  and  a  fierce  tongue,  did  nothing  to  mend 
matters, ;  Mr.  Tilton's  eccentricities  aggravated  them.  He  had 
sleepless  nights,  and  amused  himself  by  going  about  the  house  in 
his  night-clothes  re-hanging  the  pictures  on  the  walls,  or  going 
from  bed  to  bed,  driving  out  the  previous  occupants,  until  he  could 
find  a  couch  to  his  liking.  He  began  to  look  down  upon  his  wife 
as  a  woman  excellent  in  her  way,  but  intellectually  below  him,  and 
on  more  than  one  public  occasion  noticeably  slighted  her.  That 
he  was  violent  in  his  language  in  the  home  circle  seems  to  be  indis- 
putable ;  that  he  was  violent  also  in  action  is  solemnly  sworn  to. 
His  wife  was  a  sensitive,  shrinking,  and  somewhat  morbid  woman, 
idolatrously  loved  and  revered  her  husband,  accepted  meekly  his 
estimate  of  her  abilities,  and  had  not  the  strength  to  resist,  nor  the 
tact  and  skill  to  lead  him.  But,  as  in  many  another  home  circle, 
nothing  of  this  transpired  before  the  public.  Outwardly  there  was 
a  busy  man,  a  loving  wife,  a  peaceful  home  ;  only  to  the  inmates 
of  the  home  were  these  secret  unhappinesses  known.  Their  chief 
revealer  is  the  young  lady  known  as  Miss  Bessie  Turner,  a  kind  of 
adopted  daughter  of  the  Tiltons. 

So  when,  in  December,  1870,  Miss  Bessie  Turner  came  to  Mr. 
Beecher  with  the  statement  that  the  idolizing  wife  had  left  the 
idol,  and  with  the  request  that  he  would  come  and  confer  with  her 
at  her  mother's,  though  as  pastor  he  had  known  something  of  the 
growing  estrangement,  he  was  greatly  surprised ;  and  when  he 
came  to  hear  her  account  of  the  reason,  his  surprise  was  deepened 
into  a  wondering  indignation.  Miss  Bessie  Turner  assured  him 
that  Mrs  Tilton  was  worn  out  with  ill  treatment,  which  she  had 
borne  with  patience  until  patience  had  ceased  to  be  a  virtue  ;  she 
declared  that  she  herself  had  suffered  the  insults  of  the  husband  ; 
and  the  occasions  were  narrated  with  some  particularity.  Her 
account  was  confirmed  by  the  statements  of  Mrs.  Morse,  and  by  the 
acquiescing  silence,  rather  than  the  accusing  words,  of  Mrs.  Tilton, 
Mr.  Beecher  hesitated  what  advice  to  give  ;  consulted  with  one  of 
the  deacons  of  the  church  and  with  his  wife  ;  called  with  her  on 
the  following  day  ;  and,  acquiescing  in  their  judgment,  finally 
counseled  a  permanent  separation.  The  estrangement  between 
Mr.  Tilton  and  his  former  pastor  was  now  complete.  Mr.  Beecher 
had  done  that  which  it  is  always  dangerous,  even  if  necessary,  to 
do — he  had  interfered  in  a  domestic  quarrel;  and  he  had  coun- 
seled a  separation  which,  if  it  were  consummated,  must  inevitably 
add  to  those  public  criticisms  from  which  Mr.  Tilton  was  already 
suffering. 

Mr.  Tilton  instantly  took  his  resolution — a  twofold  one  :  first, 


TRIAL  OF  BEECHER.  417 

to  recover  his  wife  ;  second  (we  quote  his  own  language),  "  to 
strike  Mr.  Beecher  to  the  heart."  *  *  *  * 

The  statement  of  the  defendant's  case  by  Gen.  Tracy  was  a  long 
and  labored  argument,  as  Tiiomas  Nast  aptly  said,  in  "painting 
Mr.  Tilton  black  to  make  Mr.  Beecher  white." 

The  conduct  of  Mr.  Shearman,  as  a  brother  church-member  and 
private  counsel  for  Mr.  Beecher,  was  irritable  and  at  times  cap- 
tious, but  left  no  lasting  impression  on  the  jury  to  increase  the 
chances  of  acquittal. 

The  cross-examination  of  the  witnesses  by  Judge  Fullerton  was 
critically  severe  and  continued  at  great  length,  and  considered  the 
best  ever  sustained  in  this  country.  But  the  climax  in  this  branch 
was  only  reached  when  Mr.  Beecher  himself  testified,  and  was  ques- 
tioned by  the  master  cross-examiner,  in  that  rapid,  exhaustive  and 
ingenious  method  peculiar  to  that  counsel. 

Judge  Fullerton,  as  a  cross-examiner,  has  few  if  any  equals  in 
America.  His  rapidly-repeated  questions  to  both  Mr.  Moulton  and 
Mr.  Beecher,  his  sallies  of  wit,  his  aptness  in  discussion  of  evidence, 
his  wonderful  analysis  of  every  word  in  important  testimony, 
elicited  much  comment  and  general  praise  throughout  the  country. 
He  would  begin  by  a  general  question,  and  being  well  supplied  by 
both  direct  answers  to  questions  and  copious  notes,  would  follow 
on  for  hours  on  a  single  theme.  Space  will  not  permit  even  an 
abstract  of  the  evidence,  but  the  general  tenor  appears  in  the  argu- 
ment of  counsel,  and  a  single  day's  resume  from  the  press  will  suf- 
fice : 

Mr.  Fullerton  returned  to  the  question  as  to  whether  Tilton  had 
charged  improper  proposals.  Mr.  Beecher,  after  a  night's  reflec- 
tion, still  held  to  the  theory  that  Mr.  Tilton  had  merely  car- 
ried charges  made  by  his  wife.  The  word  "charge"  had  been 
used  on  the  direct  examination  merely  as  a  synonym  for  "  declare,'' 
"narrate,"  or  "state."  Then  Mr.  Beecher  said  that  in  his  letter 
of  disavowal  to  his  nephew,  Mr.  Perkins,  he  never  intended  to 
embrace  the  Tilton  charge.  Next  in  order  of  consideration  came 
the  piece  de  resistance,  from  which  so  much  was  expected — the 
'ragged  edge"  letter.  Mr.  Beecher  went  over  the  events  antece- 
dent to  writing  that  letter  substantially  as  on  the  direct  examination. 
Mr.  Fullerton  wanted  to  know  why  Mr.  Beecher  had  not  made  au 
explanation  to  the  church  if  he  was  innocent.  He  answered  that 
he  was  keeping  his  part  of  the  compact  of  silence.  He  did,  and  he 
did  not  believe  the  others  were  keeping  their  part.  [Laughter.] 
27 


418  MODERN  JURY  TRIALS. 

Judge  Neilson  ordered  Sergt.  Roger  to  remove  from  the  court  room 
any  person  caught  offending. 

"  Except  the  counsel,"  said  Mr.  Fullerton. 

"Except  the  counsel, '  repeated  his  honor,  gravely,  and  there  waa 
another  titter.  Almost  immediately  afterward  counsel  and  witness 
had  a  spat  which  caused  the  audience  to  offend  again.  Mr.  Fuller- 
ton  was  pressing  a  question  and  followed  it  with  a  remark,  that  he 
was  going  to  find  out  all  about  these  things  before  he  got  through. 

"I  don't  think  yon  are  succeeding  very  well,"  retorted  Mr. 
Beecher. 

The  questioning  was  sharp  in  regard  to  the  "keen  suspicions" 
clause.  The  keen  suspicions,  Mr.  Beecher  said,  were  rumors  preva- 
lent in  his  congregation  in  regard  to  the  Bowen  scandals.  The 
Tilton  matter  was  not  in  his  mind  when  he  wrote  his  "  ragged 
edge"  letter.  He  considered  that  if  these  scandals  were  inves- 
tigated the  Tilton  troubles  would  come  out;  and,  furthermore,  that 
a  Congregational  church  was  the  worst  tribunal  before  which  an 
investigation  could  be  had.  The  point  of  his  proposed  sacrifice 
was  to  restore  happiness  to  Tilton's  household.  The  contest  was 
here  extremely  exciting.  Mr.  Beecher  braced  himself  up,  and 
question  and  answer  flew  back  and  forth  with  sharpness  and  rapid- 
ity. Mrs.  Beecher  smiled  approval  from  her  seat. 

"  Was  there  no  person  in  your  congregation  to  whom  you  could 
go  for  counsel  ?  "  said  Mr.  Fullerton. 

"  Not  one,"  said  Mr.  Beecher,  with  emphasis. 

"  It  is  well  to  know  it,"  retorted  Mr.  Fullerton,  and  the  letter  was 
dropped. 

The  next  subject  taken  up  was  the  "  true  story."  Mr.  Beecher 
said  that  Tilton  told  him,  before  reading  it,  that  there  was  one 
clause  which,  if  he  could  stand  it,  he  could  stand  the  whole,  refer- 
ring to  the  improper  solicitations  clause.  "I  thought  so  myself 
when  I  heard  it,"  added  Mr.  Beecher,  demurely.  [Laughter.] 

"Why  did  you  not  rise  up  and  deny  the  charge? "  thundered  Mr. 
Fnllerton. 

"Mr.  Fullerton,"  answered  Mr.  Beecher,  grandly,  "that  is  not 
my  habit  of  mind,  or  my  manner  of  dealing  with  men  and  things." 

"So  I  observe,"  said  Mr.  Fullerton. 

The  letter  to  the  Eagle  and  the  letter  of  declination  were  then 
gone  over.  Mr.  Beecher  said  he  had  not  seen  the  latter  letter  after 
it  was  drawn  np,  but  he  corrected  himself  subsequently,  when  it 
was  shown  that  in  his  Icnsr  statement  to  the  committee  he  spoke  of 
having  it  in  his  possession.  Then  the  interview  with  Mrs.  Moulton 
was  taken  up.  Mr.  Beecher  said  he  did  not  lie  down  that  morning 


TRIAL  OF  BEECHER.  419 

on  the  sofa  or  "  on  anything  else."  Previously  he  had  often  lain 
down  in  Mrs.  Moulton's  presence.  He  was  very  positive  that  the 
kiss  of  inspiration  was  given  while  he  was  sitting  at  a  table.  He 
acknowledged  that  he  had  suggested  to  counsel  to  ask  Mrs.  Moul- 
ton  while  on  the  stand  about  the  kiss. 

There  was  a  sharp  examination  on  the  subject  of  calling  Mrs. 
Moulton  "  a  slice  of  the  day  of  judgment."  Mr.  Beech er  wanted  to 
qualify  his  answers,  and  Mr.  Fullerton  insisted  on  stopping  him. 
At  length  he  said  that  he  would  swear  positively  that  he  did  not 
make  use  of  that  expression,  but  would  not  be  positive  as  to 
whether  he  had  said  something  akin  or  not.  With  a  series  of  flat 
negatives,  he  denied  that  he  had  ever  had  any  conversation  with 
Mrs.  Moulton  in  regard  to  a  confession  or  statement  to  the  church,. 
His  proposed  resignation  had  no  reference  to  the  West  charges. 
He  disposed  of  the  sentence  in  his  letter  to  Moulton  that  "  neither 
you  nor  Tilton  should  be  troubled  by  the  side  you  have  taken  in 
public,"  by  saying  that  the  last  word  was  not  "  public,"  but  "  poli- 
tics." At  this  there  was  a  flurry  among  counsel,  and  the  letter  was 
passed  around  and  closely  scrutinized.  This  interpretation  was 
finally  accepted.  Mr.  Beecher  did  not  tell  Brother  Bell  to  break 
up  the  deacons'  meeting.  What  he  feared  in  regard  to  the  women 
was  that  they  would  talk  too  much.  He  had  never  heard  the  third 
specification  of  the  West  charges.  The  answer  almost  knocked 
Mr.  Fullerton  over  with  amazement.  He  made  Mr.  Beecher  repeat 
the  denial  three  or  four  times,  and,  as  a  climax,  asked  him: 

"You  say  that  Theodore  Tilton's  charge  of  intimacy  with  his 
wife  and  the  charges  made  by  your  church  and  by  the  committee 
of  your  church  made  no  impression  on  you?" 

"Not  the  slightest,"  answered  Mr.  Beecher,  shortly. 

Mr.  Beecher  dodged  the  question  for  some  time,  and  Mr.  Fuller- 
ton  became  angry.  Mr.  Shearman  popped  up  to  his  client's  aid, 
but  Mr.  Fullerton  declined  to  yield  the  floor,  and  the  two  lawyers 
talked  together  for  some  minutes  amid  general  amusement.  Finally, 
Mr.  Shearman,  angrily  remarking  upon  the  insolence  of  counsel, 
sat  down.  Mr.  Fullerton  said  that  he  could  be  corrected  by  the 
witness  if  he  had  quoted  wrong.  Mr.  Shearman  sprang  to  his  feet 
again,  and  said  that  it  was  a  singular  coincidence  that  when  coun- 
sel had  not  the  record  before  him  he  never  quoted  correctly. 

Mr.  Fullerton  retorted  that  when  Mr.  Shearman  was  not  impert- 
inent he  was  not  anything. 

Judge  Neilson  intorposed  with,  "  Probably  counsel  thought — " 

Mr.  Fullerton  interrupted  to  say  that  what  Mr.  Shearman  thought 


420  MODERN  JURY  TRIALS. 

could  not  possibly  be  of  sufficient  importance  to  take  up  the  time 
of  the  court  or  his  time. 

Subsequently,  when  Mr.  Beecher  said  that  the  idea  of  blackmail 
had  been  given  him  by  others,  Mr.  Fullerton  stopped  him  with  the 
remark  that  he  did  not  want  to  become  involved  in  another  con- 
troversy with  Mr.  Shearman. 

The  blackmail  business  continued  to  be  the  subject  of  some 
very  sharp  questioning.  Mr.  Beecher  said  that  he  did  not  get  that 
idea  until  his  return  from  the  White  Mountains.  He  did  not  know 
which  of  those  with  whom  he  talked  had  convinced  him  that  there 
had  been  blackmail. 

"  Well,"  said  Mr.  Fullerton,  "  name  them,  and  we  will  divide  the 
honors." 

"  I  think  Mr.  Shearman  will  have  to  bear  his  part,"  answered 
Mr.  Beecher,  laughing. 

"I  thought  so,"  remarked  Mr.  Fullerton. 

"  Gen.  Tracy  was  another,"  continued  Mr.  Beecher. 

Here  Mr.  Fullerton  interposed  a  significant  "  yes." 

"  They  told  me  I  was  green,"  said  Mr.  Beecher,  in  a  tone  that 
gave  rise  to  loud  laughter. 

"Do  you  now  believe  that  Mr.  Moulton  blackmailed  you?" thun- 
dered Mr.  Fullerton. 

Mr.  Beecher  tried  to  avoid  the  answer,  but  finally  said,  "  I  am 
afraid  he  did." 

Mr.  Beecher  could  not  recollect  a  walk  with  Mrs.  Tilton  in  New 
York  in  the  fall  of  1871;  nor  whether  he  had  been  in  an  oyster  or 
refreshment  saloon  with  her  in  1871  or  1872.  He  never  admon- 
ished her  not  to  allow  her  affections  for  him  to  go  further,  although 
he  was  at  the  same  time  laboring  under  a  strong  conviction  that  she 
had  transferred  her  affections  to  him.  He  hoped  to  influence  her  by 
his  moral  conduct,  not  by  warnings. 

The  subject  of  paying  for  Bessie  Turner's  schooling  was  then 
considered.  The  money  was  given  through  kindness,  and  not 
under  a  threat  or  suspicion  of  blackmail. 

The  connection  of  Gen.  Butler  in  the  case  was  then  gone  into. 
Mr.  Beecher  smilingly  repeated  the  assurance  that  had  been  given 
him  that  Gen.  Butler  would  "  draw  him  out  of  this  thing  no  matter 
what  the  facts  were,"  whereat  Mr.  Evarts  shook  with  suppressed 
laughter.  It  was  preposterous  to  say  that  witness  had  ever  likened 
Gen.  Butler  to  Moses,  and  he  gave  an  emphatic  "  No,  sir,"  to  the 
question  as  to  whether  he  had  said  that  the  General  was  a  great 
man — a  man  such  as  God  Almighty  permits  but  one  or  two  to  be 
born  in  a  century.  Again  Mr.  Evarts  was  convulsed,  and  a  general 


TRIAL  OF  BEECHER.  421 

iaugh  went  round.  Witness  had  not  sent  a  messenger  to  General 
Butler.  One  had  gone  as  the  result  of  a  consultation,  and  he  [Mr. 
Beecher]  had  approved  of  it.  No  report  was  made  to  him  only  as 
to  the  result  of  the  mission.  It  was  Gen.  Tracy  who  was  the  mes- 
senger. Witness  never  wrote  to  Gen.  Butler,  and  could  not  recall 
saying  to  Mr.  H.  A.  Bowen  that  Gen.  Tracy  was  his  counsel  at  the 
time.  Gen.  Tracy  was  not  his  counsel,  merely  his  adviser. 

The  next  subject  was  Mr.  Beecher's  walks  with  Mrs.  Tilton  after 
the  outbreak  of  the  scandal.  Two  were  described.  Of  one  Mr. 
Beecher  was  not  sure  of  the  distance.  Mr.  Fullerton  insisted  on 
knowing  it.  Mr.  Beecher  responded  that  he  was  not  a  surveyor. 
"It  was  less  than  a  hundred—"  "What?"  "  Miles  !"  answered 
Mr.  Beecher.  He  got  it  down  finally  to  four  or  five  blocks.  He 
had  never  been  in  Sarony's  photograph  gallery  in  New  York  with 
Mrs.  Tilton. 

As  Mr.  Beecher  stepped  down  from  the  chair  he  accosted  Mr. 
Fullerton,  and  inquired  about  his  health.  The  great  cross-exami- 
ner replied  courteously  that  if  the  trial  should  ever  end,  he  would 
then  follow  Mr.  Beecher's  example  and  go  to  his  farm  for  a  long 
recreation. 

Mr.  Beecher  repeating  that  he  did  not  get  the  idea  of  blackmail 
until  October,  1874,  was  confronted  with  his  previously-made  state- 
ment in  which  he  charges  blackmail.  First,  there  was  a  sharp  con- 
test on  the  statement  itself,  Mr.  Beecher  refusing  to  acknowledge 
that  it  was  his  written  statement,  because  a  stenographer  had 
written  it.  Then  he  explained  that  his  idea  that  he  had  been 
blackmailed  was  very  fluctuating.  Sometimes  he  believed  in  it, 
and  more  times  not.  He  wrote  the  statement  during  one  of  the 
periods  when  he  believed.  "  It  was  periodical,  I  suppose,** 
remarked  Mr.  Fullerton,  sarcastically.  "No;  not  quotidian,  ex- 
actly," responded  Mr.  Beecher.  "Did  it  wax  and  wane  with  the 
moon  ?"  asked  Mr.  Fullerton.  The  reason  witness  had  not  done 
justice  to  Mr.  Moulton  during  his  periods  of  disbelief  was  that  he 
had  the  fear  of  his  lawyers  before  his  eyes. 

"  Are  you  in  the  habit  of  having  your  sermons  published  ?"  asked 
Mr.  Fullerton.  Mr.  Beecher  acknowledged  that  he  was,  and  also 
that  he  had  preached  a  sermon  on  "  The  Nobility  of  Confession," 
on  October  4,  1868.  "I  hope  Mr.  Fullerton  is  not  going  to  preach 
us  a  sermon,"  sarcastically  remarked  Mr.  Shearman.  "  I  would  do 
BO  if  I  thought  I  could  convert  brother  Shearman,"  retorted  Mr. 
Fullerton.  "I  will  be  happy  to  give  you  the  use  of  my  pulpit," 
said  Mr.  Beecher.  "  Brother  Shearman  is  the  only  audience  I  will 
want,"  said  Mr.  Fullerton.  "  Perhaps  he  is  the  only  audience  you 


422  MODERN  JURY  TRIALS. 

can  get,"  rejoined  Mr.  Beecher.  "If  I  succeed  in  converting 
Brother  Shearman  I  will  consider  my  work  as  a  Christian  minister 
complete,**  said  Mr.  Fullerton.  This  contest  of  wit  created  much 
merriment.  Mr.  Fullerton  then  read  a  passage  from  ,the  sermon, 
the  effect  of  which  is  that  if  a  person  commits  a  great  sin,  and  the 
exposure  of  it  would  cause  widespread  misery,  such  a  person  would 
not  be  justified  in  confessing  it,  merely  to  relieve  his  conscience. 
Mr.  Beecher  said  that  that  was  sound  doctrine.  At  this  point  Mr. 
Fullerton  turned  to  the  court,  and  pointing  to  the  clock,  said, 
"  Nothing  comes  after  the  sermon,  I  believe,  but  the  benediction.** 
His  honor  took  the  hint,  and  at  3.55  the  proceedings  adjourned. 

A  fine  point  of  practice  was  won  by  the  prosecution  when  the 
court  overruled  defendant's  motion  for  a  bill  of  particulars.  The 
arguments  on  this  motion  were  extremely  elaborate.  Mr.  Shear- 
man's own  words,  in  his  published  work,  were  quoted  with  force 
against  such  a  bill  and  referred  to  as  excellent  authority. 

But  the  real  duel  of  giants  with  the  weapon  of  words,  was  fought 
by  Mr.  Evarts  and  Mr.  Beach,  in  their  closing  arguments.  Never 
before  in  any  country  had  counsel  such  an  audience.  Every  word 
was  telegraphed  across  the  continent;  every  incident  caught  up 
and  magnified,  and  it  became  the  breath  of  the  republic  through 
the  champions  of  each  respective  side.  When  Mr.  Evarta  scored  a 
point  the  Beecher  side  applauded  from  Maine  to  Mexico.  If  Mr. 
Beach  made  a  capital  hit,  a  ripple  of  applause  passed  rapidly  over 
the  other  side,  each  time  exciting  more  intense  interest  in  the 
general  result  and  making  an  agreement  of  the  jury  daily  less  and 
less  probable.  The  final  end  attained  being  but  a  reflex  of  public 
sentiment,  for  no  community  agreed  on  the  guilt  or  innocence  of 
the  accused. 

The  sentences  of  Mr.  Evarts,  so  long,  so  powerful  and  so  elabor- 
ate, are  impossible  to  comprehend  by  any  sketch  or  brief  descrip- 
tion. He  is  a  tall,  slim,  spare  man,  whose  flesh  seems  but  a  scant 
covering  of  a  mighty  mind  and  the  wiry  muscle  of  an  intellectual 
athlete.  In  delivery,  his  volume  of  words  is  inexhaustible.  He 
lacks  that  freshness  of  language  that  comes  of  a  less  liberal  educa- 
tion later  in  life,  like  General  Schurz  or  General  Gai-field,  whose 
newer  words  and  terser  sentences  are  more  striking  to  the  mind  of 
juror  or  listener.  But  his  deep,  classic  reasoning  is  never  lost  on 
an  audience  like  the  one  that  attended  in  this  celebrated  case. 
Beginning  with  the  graphic  allusion  that  he  wished  for  the  eyes  of 
Argus  and  one  hundred  hands  of  Briaretis  to  see  and  unfold  all  the 
testimony  before  the  jury,  he  rapidly  sketched  the  history  of  the 
case,  explained  the  defense,  analyzed  the  evidence  and  argued 


TRIAL  OF  BEECHER.  423 

extensively  on  the  great  boyish,  confiding  and  charitable  heart  of 
Mr.  Beecher.  During  his  long  and  elaborate  address,  no  unkind 
word,  no  bitter  thought  escaped  his  lips,  but  with  a  splendid  array 
of  facts  and  circumstances,  he  held  up  the  defendant  as  a  genius  of 
wonderful  attainments  and  rare  good  nature,  generous  to  a  fault, 
confiding  and  trusting  long  after  he  had  been  betrayed  into  bad 
fellowship.  In  closing,  his  appeal  was  most  touching  and  power- 
ful. The  whole  address  was  a  masterly,  able  and  brilliant  argu- 
ment. But  the  climax  was  reached  with  the  eloquent  closing 
argument  of 

WILLIAM   A.   BEACH. 

He  had  not  uttered  a  dozen  sentences  before  the  whole  audience 
was  electrified  by  his  thrilling  style  of  language  and  delivery.  He 
was  clearly  the  head  of  the  great  combination  of  advocates. 

Mr.  Beach  is  large,  tall,  well  built,  courteous  and  dignified  man, 
with  the  air  and  manner  of  an  Englishman,  but  the  fire  and  fervor 
of  a  western  orator.  Now  over  seventy,  with  an  erect,  graceful 
carriage — a  Chesterfield  in  appearance.  Smoothly  shaven,  full,  fair 
face,  save  a  slight  imperial  beard;  quick,  flashing,  gray  eyes;  clear, 
impulsive  and  powerful  in  delivery.  He  is  able  and  determined  in 
debate,  and  warmly  attached  to  his  clients'  interests.  His  argument 
was  a  full  history  of  the  case  from  end  to  end,  ably  assisted  by 
K.  A.  Pry  or  and  Judge  Fullerton,  amply  supplied  with  manuscript, 
and  full  as  a  fountain  of  the  facts  in  the  suit. 

He  began  by  saying  his  esteemed  and  eloquent  brother  (Evarts)f 
"had  wished  for  a  hundred  hands  and  a  hundred  eyes  to  unfold  and 
behold  the  testimony  and  place  it  in  a  fit  light  before  the  jury. 
His  brother  had  had  even  these  great  wishes  gratified,  for  he  had 
not  only  the  hundred  hands  of  Briareus  desired,  and  the  hundred 
eyes  of  Argus,  but  the  gold  of  Midas,  to  carry  out  the  defendant's 
slightest  wishes  in  every  important  particular." 

This  side  allusion  to  Plymouth  Church  created  no  little  sensation 
and  at  once  placed  the  whole  country  on  a  tiptoe  of  excitement. 
Striking  out  boldly  into  the  marrow  of  the  case,  Mr.  Beach  gave  an 
exhaustive  reply  to  Mr.  Evarts,  and,  with  his  determined  and  ener- 
getic manner,  his  rare  skill  as  a  linguist  and  debater,  his  pathos  and 
magnetic  eloquence,  made  a  solid  wall  of  facts  and  circumstances 
to  uphold  his  position.  At  times  he  grew  husky  and  weary;  again, 
with  eyes  swollen  and  heavy,  and  voice  low,  even  to  a  whisper,  the 
scene  was  intensely  dramatic.  Once,  he  lost  his  temper  a  moment 
with  the  foremin  of  the  jury,  who  gave  a  curious  sneer  at  a  sentence, 


424  MODERN  JURY  TRIALS. 

and  addressed  the  juryman  by  name,  and  in  an  emphatic  manner 
directed  him  to  remember  his  oath  to  try  the  case  without  prejudice. 
This  attack  welded  Mr.  Beach's  friends  on  the  jury  so  firmly  together 
that  they  took  sides,  and  a  disagreement  became  an  accomplished 
fact.  This  was  all  that  could  be  hoped  for  in  a  case  of  such 
extreme  length  and  differences  of  testimony  ;  so  that,  what  may 
at  first  seem  injudicious — a  quarrel  with  a  juryman — proved  to 
plaintiff's  advantage  in  preventing  a  defeat.  Nearing  the  close  of 
the  trial,  and  for  the  second  and  last  day,  the  court  scenes  were 
supremely  eloquent  and  impressive. 

Mr.  Beach  was  cheered  when  he  entered  the  court-room,  when  he 
went  out,  and  even  at  recess.  The  ladies  shared  heartily  in  the 
hand-clapping  and  applause,  and  were  frequently  heard  to  say,  "O, 
did  you  hear  that  ?  Listen  !  It's  grand  !" 

His  closing  sentences  were  truly  sublime,  as  he  pictured  the 
temple  of  justice  tried  by  the  turbulence  of  passion: 

We  have  stood  together  before  this  community,  animated  by  a 
common  object,  seeking  after  the  right  in  honest  sincerity.  The  dis- 
tempered plea  of  turbulent  passions  has  been  against  the  altar  at 
which  we  serve.  The  boisterous  interests  and  sympathies  of  an  inter- 
ested people  have  tried  the  firm  foundation  of  this  temple,  but  the 
spirit  of  justice  sees  nothing  of  the  tumult,  hears  nothing  of  the 
uproar.  Calm  and  confident,  she  leans  trustingly  upon  a  juror's  oath. 
Your  consciences  uphold  the  shaking  temple  and  the  tottering  altar. 
If  they  weaken  and  fail,  if  the  strong  pillars  of  honesty  and  truth 
give  way,  temple  and  altar  and  God  sink  to  a  common  ruin.  The 
struggle  this  day  is  between  the  law  and  a  great  character  and  a 
great  church.  If  the  latter  triumph,  and  the  law  is  trodden  down, 
woe  unto  him  who  calls  evil  good,  and  good  evil. 

No  man  venerates  more  profoundly  than  myself  the  magnificent 
genius  of  this  defendant.  His  large  contributions  to  the  literature 
of  the  times  excite  the  sentiment  of  which  Macaulay  spoke  in  his 
essay  on  the  Life  of  Bacon.  Rich  as  he  is  in  mental  endowments, 
prodigal  as  his  labors  have  been,  they  can  shelter  no  offense  against 
the  law. 

Genius  as  lofty,  learning  more  rare  and  profound,  could  not  save 
Bacon.  He  sinned  and  fell.  Upon  his  memory  history  has  writ- 
ten the  epitaph,  "The  greatest  and  the  meanest  of  mankind." 
Toward  great  men  in  disgrace,  like  those  who  fall,  Whittier,  Nevf 
England's  gifted  poet,  writes  in  his  poem  entitled  "Ichabod:" 

So  fallen  !  so  lost ;  the  light  withdrawn 

Which  once  he  wore  1 
The  glory  from  his  gray  hairs  gone 

Forevermore  1 


TRIAL  OF  BEECHER.  426 

Revile  him  not — the  Tempter  hath 

A  snare  for  all, 
And  pitying  tears,  not  scorn  and  wrath. 

Befit  his  fall  1 

O,  dumb  be  pnssion's  stormy  rage, 

When  he  who  might 
Have  lifted  up  and  led  his  age 

Falls  back  in  night. 

Scorn  I  would  the  angels  laugh  to  mark 

A  bright  soul  driven, 
Fiend-goaded,  down  the  endless  dark, 

From  hope  and  heaven  1 

Let  not  the  land  once  proud  of  him 

Insult  him  now. 
Nor  brand  with  deeper  shame  his  dim. 

Dishonored  brow. 

But  let  its  humbled  sons  instead, 

From  sea  to  lake, 
A  long  lament,  as  for  the  dead, 

In  sadness  make. 

Of  all  we  loved  and  honored,  naught 

Save  power  remains — 
A  fallen  angel's  pride  of  thought, 

Still  strong  in  chains. 

All  else  is  gone ;  from  those  great  eye* 

The  soul  has  fled: 
When  faith  is  lost,  when  honor  dies, 

The  man  is  dead  1 

Then,  pay  the  reverence  of  old  days 

To  his  dead  fame; 
Walk  backward,  with  averted  gaze, 

And  hide  the  shame ! 

Gentlemen,  I  commit  this  case  to  you  in  the  sublime  language 
of  the  great  orator  who  speaks  to  you  from  his  grave  at  Marsh- 
field: 

"  With  conscience  satisfied  with  the  discharge  of  duty,  no  con- 
sequences can  harm  you.  There  is  no  evil  that  we  cannot  either 
face  or  fly  from  but  the  consciousness  of  duty  disregarded.  It  is 
omnipresent,  like  the  Deity.  If  we  take  to  ourselves  the  wings  of 
the  morning  and  dwell  in  the  uttermost  parts  of  the  earth,  duty 
performed  or  duty  violated  is  still  with  us  for  our  happiness  or 
misery,  and  if  we  say  darkness  shall  cover  us,  in  darkness  as  in  the 
light  our  obligations  are  yet  with  us.  We  cannot  escape  their 
power  nor  fly  from  their  presence.  They  are  with  us  in  this  life, 
will  be  with  us  at  its  close,  and  in  that  sense  inconceivable  solem- 
nity which  lies  yet  further  onward  we  shall  still  find  ourselves  sur- 
rounded by  the  consciousness  of  duty  to  pain  us  wherever  it  has 
been  violated,  and  to  console  us  so  far  as  God  may  have  given  ui 
grace  to  perform  it."  [Applause.] 


425  MODERN  JURY  TRIALS. 

At  the  close  of  his  argument,  Mr.  Beach  was  greatly  applauded, 
and  soon  after  was  warmly  congratulated  by  Mr.  Evarts.  The 
speech  occupied  over  a  week  in  delivery,  and  would  fill  a  volume 
by  itself.  Space  will  not  permit  a  full  account  of  this  most  mar- 
velous trial  of  any  in  America.  The  jury  stood,  nine  for  defendant 
and  three  for  plaintiff — about  as  public  opinion  averaged.  The 
charge  of  the  court  could  be  summed  up  in  a  sentence:  "You 
have  heard  all  the  testimony  and  the  arguments;  take  the  case  and 
decide  it  according  to  the  evidence."  A  model  charge. 


THE  BABCOCK  CONSPIRACY  CASK 

Tried  at  8t.  Louis,  February,  1876. 

The  close  of  1875  and  early  winter  of  '76  was  an  exciting  period 
with  the  famous  ring  of  illegal  distillers  in  the  cities  of  Chicago, 
Milwaukee,  Cincinnati  and  St.  Louis.  The  startling  discoveries 
through  Secretary  Bristow,  the  successful  prosecutions  in  Wiscon- 
sin, the  incisive  words  of  General  Grant,  to  "  Let  no  guilty  man 
escape!"  led  many  to  confess  and  plead  guilty,  while  some  were 
promptly  convicted. 

The  central  figure  or  seat  of  war  was  at  St.  Louis,  where  Joyce 
and  McDonald  were  supposed  to  have  colluded  with  General  Bab- 
cock,  a  near  friend  of  President  Grant,  to  defraud  the  Government 
of  its  revenue  on  distilled  liquors  and  divide  the  profits.  Early  in 
1876  General  Babcock  was  tried  in  the  United  States  District 
Court,  before  Judge  Dillon  and  a  jury. 

Among  the  distinguished  counsel  were  General  Broadhead,  Gen- 
eral Dyer,  General  Porter  and  Hon.  Emory  A.  Storrs,  each  with  a 
reputation  fully  established,  and  in  this  trial  each  displayed  signal 
courage,  courtesy  and  ability,  as  extracts  of  their  addresses  will 
prove. 

The  leading  features  of  the  trial  were  the  liberal  range  of  testi- 
mony admitted,  showing  that  fraud  opens  a  broad  door  in  such 
cases.  Even  the  fact  that  a  telegram  was  received  at  St.  Louis, 
and  mailed,  properly  prepaid  and  directed,  was  decided  to  be  some 
evidence  that  it  reached  its  owner.  The  same  rule  was  held  as  to 
the  mailing  of  letters,  although  no  evidence  aside  from  this  could 
be  adduced  to  show  the  actual  receipt  of  the  dispatches. 


BABCOCK   CONSPIRACY  CASE.  427 

The  arguments  of  the  four  counsel  reported  each  contain  sep- 
arate statements  of  the  offense  charged  and  the  explanation  ingeni- 
ously given.  The  case  was  very  sagaciously  managed  and  sharply 
contested  every  inch  of  advantage  held  on  either  side.  It  is  diffi- 
cult to  compare  the  arguments,  but  the  word-pictures  of  Mr.  Storrs 
are  vivid  and  life-like.  His  closing  appeal  to  the  jury  was  deliv- 
sred  in  an  eloquent  and  effective  manner. 

Mr.  Storrs  is  below  the  medium  size,  under  fifty  years  of  age, 
dark  brown  hair,  full  short  beard;  a  man  of  great  fluency  and  com- 
mand of  language.  He  speaks  with  intense  force  and  feeling, 
rather  flowery  in  his  rhetoric,  and,  when  fully  aroused,  his  lan- 
guage is  free  and  well  chosen.  In  speaking,  he  is  wholly  absorbed 
in  graphic,  animated  action.  His  manner  alone  is  often  very  elo- 
quent, and  always  highly  pleasing  to  an  audience.  It  is  a  matter 
of  wonder  to  many  where  he  finds  so  many  apt  illustrations  in  the 
midst  of  a  heated  discussion.  In  a  word,  he  is  gifted,  as  a  speaker. 

ARGUMENT  OF  MR.  STOBB8. 

IF  YOUB  HONOB  PLEASE  : 

Gentlemen  of  the  Jury — You  are  here  to-day,  and  have  been  for 
the  period  of  nearly  two  weeks,  engaged  as  jurors  in  listening  to 
the  evidence  in  a  case  which,  without  exaggeration,  possesses  the 
most  transcendent  importance.  In  but  very  few  instances,  gentle- 
men of  the  jury,  in  the  history  of  this  country  have  issues  so  sol- 
emn in  their  character,  and  so  serious  in  their  nature,  as  those  which 
are  involved  in  this  case,  been  presented  for  the  consideration  of  a 
jury.  I  am  sure  that  all  these  considerations  have  impressed  them- 
selves duly  upon  your  minds;  for  I  have  not  failed  to  note,  and  J 
have  been  profoundly  gratified  to  observe,  the  patient,  earnest, 
eager,  faithful  attention  which  you  have  given  to  this  case  from 
its  commencement  down  to  the  present  moment.  The  supreme 
importance  of  this  case,  and  the  magnitude  of  the  interests  which 
are  involved  in  it,  furnish  a  sufficient  apology  to  me,  if  any  apology 
were  required,  for  impressing  upon  you  the  necessity  of  bringing 
to  bear  upon  it  your  most  calm,  unbiased  and  unconstrained  judg- 
ment. It  is  a  part  of  the  history  of  the  immediate  times  in  which 
we  live,  and  to  which  I  deem  it  entirely  proper  to  refer,  that,  for 
the  period  of  nearly  a  year  past,  there  has  been,  with  reference  to 
the  general  topic  in  the  investigation  of  which  you  have  been 
engaged,  an  intense  degree  of  public  feeling  and  excitement. 
You  do  not,  gentlemen  of  the  jury,  when  you  quit  the  homes 
from  which  you  have  been  called,  cease  to  be  men.  You  are  the 


428  MODERN  JURY  TRIALS. 

same  men  here  to-day  that  you  are  by  your  own  fireside,  and 
in  the  presence  of  your  own  families.  These  great  gusts  of  pub- 
lic feeling,  these  whirlwinds  of  public  excitement  that  sometimes 
sweep  across  the  land,  and  take  even  the  wisest  men  from  their 
feet,  may  possibly  affect  you  upon  the  jury  box  as  they  would 
effect  you  at  home.  I  am  a  firm,  thorough,  devoted  believer 
in  the  ultimate  right  of  what  is  called  "public  opinion."  I 
believe  that  it  is  almost  always  correct,  and  almost  always 
right  upon  the  premises  upon  which  it  is  founded.  A  well- 
regulated  public  opinion,  understanding  all  the  facts,  moving  with- 
out bias,  prejudice  or  passion,  is,  I  am  glad  to  recognize,  the  surest 
earthly  evidence  we  have  of  truth.  But,  gentlemen  of  the  jury,  it 
has  never  been  considered  a  very  safe  element  in  the  administration 
of  justice,  since  nearly  two  thousand  years  ago  it  profaned  the 
judgment  seat  and  insulted  heaven  by  the  cry  of  "  Crucify  Him, 
crucify  Him  ! "  You  are  here  to-day  as  jurors  in  a  great  and  sol- 
emn cause.  I  am  here  as  an  advocate  in  that  cause.  You  have 
your  duties  to  perform — I  have  mine;  and  I  ask  and  pray  you,  gen- 
tlemen, as  we  both  enter  upon  the  performance  of  these  duties,  that 
we  may  do  them  with  "hearts  void  of  offense  towards  all;"  that 
you  may  dismiss  from  your  minds  every  bias  of  prejudice  or  pas- 
sion, which  by  any  earthly  possibility  could  have  found  a  lodgment 
there;  that,  with  clear  judgment,  unwarped  by  any  breezes  or  heats 
of  public  controversy;  that,  with. unprejudiced  hearts,  unaffected  by 
the  poison  of  political  passion;  that,  with  pure,  upright,  honest 
judgments,  untwisted  by  any  mere  private  feeling  of  your  own, 
we  may  approach  the  discussion  of  this  great  case.  We  are  here 
to-day,  gentlemen  of  the  jury,  in  this  darkened  room;  the  surround- 
ings are  not  at  all  impressive,  the  actual  picture  which  you  would 
make  of  it  possesses  no  elements  of  beauty  or  of  grandeur;  but, 
clothed  in  its  highest  reality,  it  is  the  most  splendid  theater  upon 
which  a  jury  ever  stood.  It  is  a  high  and  elevated  plateau,  toward 
which  to-day  the  eyes  of  forty  millions  of  people  are  eagerly 
strained.  Let  us,  then,  with  God's  help  and  our  own,  reach  in  the 
investigations  which  we  are  pursuing,  and  in  the  conclusions  to 
which  we  shall  ultimately  arrive,  the  full  height  and  measure  of 
this  mighty  argument.  If  you  have  prejudices,  dismiss  them;  if 
you  have  preconceived  opinions,  put  them  down;  if  you  have  feel- 
ings that  have  already  been  aroused,  smother  them. 

I  approach  and  come  to  this  great  question  with  that  rectitude 
and  perfect  fibre  of  conscience  which  the  law  and  your  own  better 
judgments  demand.  We  are  all,  gentlemen  of  the  jury,  far,  very 
far,  from  being  perfect.  There  is  no  duty  which  men  are  ever 


BABCOCK  CONSPIRACY  CASE.  429 

nailed  upon  to  perform  so  solemn  in  its  nature  as  that  of  passing 
judgment  upon  the  motives  of  their  fellow-beings.  The  poet  has 
well  said,  and  I  repeat  it — 

"In  men  whom  men  condemn  as  111, 
1  find  so  much  of  gooduess  still; 
In  men  whom  men  pronounce  divine, 

I  find  so  much  of  sin  and  blot, 
I  hesitate  to  draw  the  line 

Between  the  two,  where  God  has  not." 

I  shall  call  your  attention,  gentlemen  of  the  jury,  in  the  dis- 
cussion of  this  case,  to  the  facts  in  it.  I  shall  not  attempt — and  I 
could  not  succeed  should  I  make  the  attempt — to  impose  upon  your 
calm  judgments  by  any  flowers  of  rhetoric,  or  by  any  graces  of 
oratory  ;  all  the  eloquence,  gentlemen  of  the  jury,  that  will  be 
developed  in  what  I  shall  say  to  you,  will  be  the  tremendous  elo- 
quence of  these  facts. 

I  have  listened  with  pleased  and  earnest  attention  to  the  argu- 
ment to  which  you  have  also  listened  this  morning  by  a  great  Mis- 
souri lawyer  ;  by  an  able  lawyer  ;  one  with  a  reputation  estab- 
lished, not  only  throughout  the  boundaries  of  the  state  which  he 
honors,  but  throughout  the  whole  country  ;  and  you  will  agree 
with  me,  gentlemen  of  the  jury,  when  I  tell  you  that  but  one  gen- 
eral impression  can  be  drawn  from  the  speech  of  Col.  I^roadhead, 
and  that  is  that  it  was  a  speech  without  heart  and  without  faith  in 
the  cause  that  he  advocated  ;  and  to  the  very  last  degree — able  in 
the  statement  of  facts  which  were  not  proved  ;  able  in  the  sup- 
pression of  facts  which  were  proved  ;  able  in  the  distortion  and 
contortion  of  facts,  the  obvious  existence  of  which  no  man  could 
controvert.  For  nearly  two  weeks  have  we  been  engaged  in  this 
investigation  ;  day  after  day  passed  before  the  name  of  this 
defendant  had  even  been  mentioned  ;  we  investigated  down  to  the 
very  last  detail  of  the  circumstances  attending  the  conspiracy 
about  which  so  much  has  been  said,  and  concerning  which  all  men's 
mouths  and  minds  have  been  full.  It  is  well  for  us  to-day,  it  seems 
to  me,  before  proceeding  to  the  discussion  of  this  case  to  deter- 
mine in  our  minds  just  what  the  refuse  matter  of  the  case  is,  and 
what  are  the  actual  issues  that  this  record  presents  to  us. 

In  the  first  place,  it  is  perhaps  unnecessary  for  me  to  observe, 
but  it  is  true,  nevertheless,  that  the  consideration  as  to  whether  this 
alleged  conspiracy  was  great  or  small  is  one  with  which  you  have 
nothing  to  do.  It  may  have  been,  as  it  doubtless  was,  absolutely 
gigantic  in  its  proportions  ;  by  its  very  vastness  its  shadow  may 
have  stretched  like  a  pall  over  the  whole  land,  and  yet  if  the 


430  MODERN  JURY  TRIALS. 

defendant  was  not  a  member  of  that  conspiracy,  this  stupendous 
magnitude  cannot  affect  him.  In  the  same  connection,  it  is  a 
matter  entirely  irrelevant  to  this  issue  how  much  revenue  the  gov- 
ernment lost  by  means  of  this  conspiracy  ;  whether  it  were  mil- 
lions, or  whether  it  were  hundreds  of  dollars,  if  this  defendant 
was  not  a  member  of  that  conspiracy,  that  consideration  is  entirely 
foreign  to  this  investigation.  At  the  same  time  it  is  equally  irrele- 
vant whether  Joyce  and  McDonald,  Avery,  Hogue  and  Fitzroy 
were  all  members  of  this  conspiracy  ;  if  the  defendant  were  not  a 
member  of  it  those  considerations  are  entirely  extraneous,  and  you 
will  reject  them  from  your  consideration.  This  defendant  is 
indicted  as  a  party  to  a  conspiracy.  Will  you  bear  with  me,  gen- 
tlemen of  the  jury,  when  I  suggest  to  you  that  there  is  no  offense 
denounced  by  the  statute  book  so  dangerous  in  its  character  when 
the  charge  is  once  made,  as  this  very  one  of  conspiracy.  It  is  the 
only  offense  known  to  our  law  where  one  man  is  liable  to  be  pun- 
ished for  the  act  of  another,  where  the  honest  citizen,  the  upright 
man,  one  whom  we  had  honored,  may  lose  life  and  liberty,  not 
from  any  word  that  he  has  uttered,  not  because  of  any  act  that 
he  has  ever  done,  but  for  words  spoken  and  acts  done  by  others. 

THE    CHARGE    OP   CONSPIRACY. 

With  what  is  this  defendant  charged  ?  In  the  broad  and  gen- 
eral language  of  the  indictment,  that  he  combined  and  confeder- 
ated with  certain  persons  named  in  the  indictment  to  defraud 
the  government  of  the  United  States. 

The  statute  upon  which  this  indictment  was  found,  and  under 
which  this  defendant  is  to-day  upon  trial,  requires  that  some  act 
should  be  done  in  furtherance  of  that  conspiracy  before  the  offense 
itself  is  complete.  It  is  not  pretended  here  that  there  is  anything 
like  direct  proof  of  any  connection  on  the  part  of  this  defendant 
with  this  conspiracy.  It  is  not  pretended  that  he  shared  in  the 
acts  set  forth  in  this  indictment  as  the  means  by  which  it  was  con- 
summated; it  was  idle  to  claim  that.  The  government  was 
defrauded  by  the  removal  of  highwines  without  the  payment  of 
the  tax,  and  more  than  a  thousand  miles  of  distance  separated  this 
defendant  from  the  active  theatre  in  which  this  conspiracy  was  in 
operation.  How,  then,  does  he  become  a  conspirator?  What  has 
he  done  in  furtherance  of  this  corrupt  and  fraudulent  scheme  ?  He 
has  removed  no  spirits,  that  is  not  claimed.  It  is  averred  by  the 
learned  counsel  who  have  addressed  you  that  the  position  which  he 
filled  was  to  furnish  information — of  what?  They  say  jf  the 
coming  of  detectives.  I  say  now  to  you,  gentlemen,  and  I  will 


BABCOCK  CONSPIRACY  CASE.  431 

demonstrate  it  before  I  have  finished,  that  if  that  was  the  part 
assigned  to  Gen.  Babcock,  he  miserably  and  wretchedly  failed  in 
its  performance,  for  during  the  whole  period  of  time  covered  by 
the  operations  of  this  conspiracy,  not  one  single  syllable  of  infor- 
mation did  he  ever  furnish  to  the  active  conspirators  with  reference 
to  the  coming  of  any  human  being  here  to  investigate  their  frauds. 
Was  it  to  give  information  generally  ?  There  is  not  in  all  this  vast 
mass  of  testimony,  piled  up  as  it  has  been  within  the  last  two 
weeks,  one  single  syllable  of  evidence  showing  or  tending  to  show 
that  Gen.  Babcock  ever  communicated  to  a  single  member  of  this 
conspiracy  one  single  item  of  information  which  they  had  not 
before  that  time  possessed.  To-day  it  was  hinted  by  Col.  Broad- 
head  that  the  peculiar  mission  which  he  was  to  fill,  and  the  special 
duties  which  he  was  to  perform,  were  to  prevent  the  sending  of 
officials  hither.  There  is  not  one  syllable  of  evidence  in  this  case, 
gentlemen  of  the  jury — and  I  challenge  your  attention  to  that  fact 
— showing,  or  tending  to  show,  that  he  ever  prevented  a  single 
man  coming  here.  I  will  pause  right  there  upon  the  very  thres- 
hold of  this  case.  What  in  the  name  of  God  was  he  to  do  ?  For 
what  was  he  to  be  paid  ?  What  part  was  he  expected  to  play  in 
this  great  conspiracy  ?  Two  weeks  have  come  and  gone.  Reams 
and  reams  of  testimony  have  been  caken.  The  whole  power  of 
the  government  has  been  employed  for  nearly  a  year  in  developing 
the  facts;  the  grave  has  been  robbed  for  evidence;  every  telegraph 
office  in  the  country  has  been  ransacked  and  raided;  the  sanctity 
of  privileged  communications  between  counsel  and  client  has  been 
invaded;  and  yet,  down  to  this  day  there  is  not  one  single  syllable 
of  evidence  from  which  any  honest,  right-minded  man  can  say  that 
he  could  tell  or  guess  what  part  of  this  conspiracy  Gen.  Babcock 
sustained.  I  challenge  your  attention,  gentlemen  of  the  jury,  to 
that  great  consideration  which  meets  us  at  the  very  threshold  of 
this  case.  It  stands  there  like  a  mountain  barrier  in  your  way,  and 
you  might  as  well  attempt  with  your  naked  hand  to  twist  Mount 
Washington  from  its  eternal  anchorings  in  the  hills  of  old  New 
Hampshire  and  heave  it  into  the  sea,  as  to  remove  that  tremendous 
obstacle  which  the  Almighty  has  placed  between  that  defendant 
and  a  conviction.  I  care  not,  gentlemen  of  the  jury,  how  strong 
your  impressions  may  have  been  when  you  came  here;  I  care  not 
what  seductions  of  eloquence  or  what  threats  or  cajoleries  may  be 
employed,  when  you  come  to  ask  yourselves  the  question  and  your 
heart  answers  it:  What  part  was  Gen.  Babcock  expected  to  per- 
form ?  You  cannot  tell.  If  you  say  it  was  to  give  information, 
your  conscience  throbs  against  your  side  like  a  trip-hammer  and 


432  MODERN  JURY  TRIAL8. 

demands  that  it  shall  be  heard  to  refute  a  conclusion  of  that  char- 
acter. Through  all  this  lapse  of  time,  with  all  these  gigantic  pre- 
parations, with  all  the  sunshine,  as  if  blazing  planets  were  shining 
upon  us,  to  aid  them,  these  wretched,  purposeless,  and  so  Jar  as  any 
connection  with  this  case  is  concerned,  meaningless  telegrams,  have 
been  discovered  written  by  this  defendant.  Was  there  ever  such 
a  tremendous  pronunciamento  and  such  a  miserable  performance  ? 

I  call  your  attention  again  to  another  feature  which  characterizes 
this  case,  and  that  is  this:  Taking  advantage  of  the  supposed 
public  excitement ;  taking  advantage  of  the  natural  indignation 
which  every  honest  mind  entertains  towards  these  frauds;  taking 
advantage  of  supposed  political  feeling — taking  advantage  of  all 
these,  and  forgetting  the  first  lessons  that  he  learned  in  the  law, 
Col.  Broadhead,  the  great  leader  of  the  Missouri  bar,  a  noble  and 
fair-minded  man  himself,  swept  off  his  feet  by  the  breeze  that  has 
been  blowing  around  him  for  weeks,  asks  us  to  explain  something 
which  he  says  he  cannot  explain,  forgetting  that  in  the  better  times 
and  in  the  better  days,  to  which,  I  thank  God,  we  are  rapidly 
coming  back  again,  it  was  for  the  prosecution  to  prove  guilt  before 
a  defendant  could  be  called  upon  affirmatively  to  establish  his  inno- 
cence. We  have,  gentlemen  of  the  jury,  accepted  the  situation. 
We  have  been  compelled  to  accept  it.  We  have  desired  to  accept  it. 
We  recognize  the  fact,  charged  as  we  have  been  with  the  commis- 
sion of  this  foul  crime,  which,  if  proved,  would  consign  us  to  utter 
infamy.  That  we  are  compelled  to  be  tried,  and  are  willing  to  be 
tried,  at  the  cost  of  the  abandonment  of  every  legal  principle 
which,  for  thousands  of  years,  has  been  deemed  essential  for  the 
protection  of  the  rights  of  the  citizen.  You  know,  gentlemen  of 
the  jury,  as  I  know,  that  whatever  the  theory  of  the  law  may  have 
been,  this  defendant  did  not  come  into  this  court-room,  so  far  as 
this  transaction  is  concerned,  clothed  with  that  sacred  presumption 
of  innocence  which  the  law  throws  around  every  man;  you  know, 
as  I  know,  that  there  has  been  no  single  argument  addressed  to 
you,  nor  in  your  hearing,  which  gave  him  the  benefit  of  that  pre- 
sumption; and  to-day,  forgetting  those  great  lessons  which  he  has 
learned,  and  which  no  one  is  more  able  to  illustrate  than  Col. 
Broadhead,  he  freely  says  to  you  that  he  cannot  understand  what 
*  dispatch  means,  and  that,  therefore,  you  are  to  presume  it  means 
guilt.  He  has  been  unthinkingly  and  unwittingly  lifted  up  to 
that  position,  which,  if  we  should  reach,  gentlemen  of  the  jury, 
yourselves  and  your  homes,  and  all  that  you  hold  dear  in  this 
world,  would  not  be  worth  an  hour'?  purchase. 

I  say  we  have  accepted  the  situation.     We  ask  to-day,  from  this 


BABCOCK  CONSPIRACY  CASE.  433 

jury  and  from  this  great  country,  no  favors;  we  are  begging  no 
privileges;  but  we  do  demand  a  right;  and  in  this  place,  speaking 
to  you,  and  through  you  to  the  whole  nation,  we  demand  the  right 
of  an  honest,  intelligent,  fair-minded  judgment  upon  these  facts. 
We  simply  say  to  you,  gentlemen,  that  we  think  it  would  be  very 
unjust,  that  the  honorable  career  of  this  defendant  should  rise  up 
against  him.  We  think  it  would  be  very  unjust  that,  because  yet 
a  young  man,  standing  upon  the  very  threshold  of  his  career,  the 
good  deeds  that  he  has  done  should  rise  up  and  reproach  him.  We 
think  it  would  be  unjust  to  the  extent  that  it  would  be  cruel,  that 
because  with  the  noble  lessons  of  thrift  and  honor,  fidelity  and 
God-fearing  that  he  has  learned  in  his  old  home,  and  has  carried 
with  him  through  life,  he  should  be  convicted  of  this  crime.  If  he 
is  guilty,  blot  out  all  that  he  has  done;  if  he  is  guilty,  forget  that 
up  to  this  time,  his  life  has  been  pure  and  lofty  and  stainless;  if  he 
is  guilty,  bury  all  these  achievements  out  of  sight,  which,  young  as 
he  is,  have  shone  along  his  pathway  like  beacon-lights.  We  ask 
of  you,  gentlemen,  nothing  for  his  position.  Give  him  the  same 
fair  trial,  give  to  the  facts  the  same  honest  consideration  that  you 
would  give  to  them  if  a  newspaper  boy  from  the  streets  were  on 
trial  before  you;  give  him  that  and  nothing  more. 

Now,  gentlemen,  you  must,  when  you  come  to  consider  these 
facts,  put  yourselves  back  to  the  period  of  time  when  all  these  facts 
occurred.  When  you  come  to  read  these  dispatches  and  these 
letters,  you  must  read  them  not  in  the  light  of  to-day,  for  that  is  a 
false  light  and  will  mislead  you,  but  in  the  light  of  the  day  when 
they  were  written,  and  when  the  parties  to  them  received  and  read 
them.  Read  these  telegrams  sent  to  Babcock  in  the  light  of  the 
days  when  he  received  and  read  them,  and  when  Joyce  and  McDon- 
ald were,  so  far  as  he  knew,  honored  officials  and  trusted  men.  Do 
not  read  them  in  the  light  of  to-day,  when,  broken  in  character  and 
bankrupt  in  reputation,  they  fill  a  convict's  cell.  Read  them, 
remembering  this,  that  with  all  the  gigantic  preparations  that  have 
characterized  this  case,  from  its  commencement  to  to-day,  not  one 
single  syllable  of  evidence  has  been  adduced  to  show  that  General 
Babcock  ever  suspected,  or  had  reason  to  suspect  any  fraud. 

In  ordinary  times  and  under  ordinary  circumstances,  I  might  rest 
this  case  right  there.  I  defy  any  man  who  knows  the  evidence  in 
this  case  to  point  me  to  the  spot  or  place  which  indicates  that  Gen. 
Babcock  knew  the  corrupt  schemes  in  which  Joyce  and  McDonald 
were  engaged,  and  if  he  knew  them  not,  the  case  fails  at  its  very 
threshold. 

Gentlemen,  any  one  of  you  may  give  an  opinion  of  the  most 
28 


434  MODERN  JURY  TRIALS. 

important  character  to  a  man  who,  in  his  heart,  is  the  most  notori- 
ous scoundrel  on  the  planet;  the  information  which  you  thus  com- 
municate may  be  absolutely  indispensable  to  enable  the  party  to 
wLom  it  is  communicated  to  carry  out  and  consummate  a  crime; 
but  you  in  your  own  hearts  following  me  have  already  made  the 
suggestion  to  yourselves,  that  the  communication  of  that  intelli- 
gence which  might  have  ripened  into  the  most  stupendous  crime 
cannot  implicate  you,  unless  you  knew  the  character  of  the  man 
to  whom  it  was  given  and  the  purpose  for  which  it  was  to  be 
employed. 

I  take  one  step  further.  Has  it  occurred  to  you  to  inquire  where 
is  the  evidence  in  this  case  that  Gen.  Babcock  knew  the  purposes 
for  which  the  information  that  Joyce  and  McDonald  sought  from 
him  was  to  be  employed  ?  Let  your  minds  travel  back  over  this 
case  again — review  every  syllable  of  testimony — where  is  the  proof  ? 
The  case  does  not  show  it,  for  it  is  not  in  it.  Col.  Broadhead  tells 
you  that  a  conspiracy  is  a  difficult  crime  to  prove.  All  crimes  are 
committed  secretly,  and  conspiracies  do  not  differ  in  that  particular 
from  any  other  crime,  but  the  difficulty  does  not  dispense  with  the 
proof.  Ah,  gentlemen,  Col.  Broadhead,  in  that  suggestion,  conveys 
this  lurking  idea,  that  because  it  is  difficult  to  prove,  and  from  the 
fact  that  we  have  not  proved  it,  therefore,  he  substantially  says — 
because  that  is  the  speech  that  came  out  from  the  pores,  but  not 
from  the  mouth — "  I  cordially  invite  you  to  violate  your  oaths  by 
assuming  that  the  crime  has  been  committed,  although  we  have 
been  unable  to  show  it."  But,  gentlemen  of  the  jury,  if  Gen.  Bab- 
cock  had  ever  known  the  purposes  for  which  this  information  was 
to  be  employed,  wouldn't  they  have  found  that  out  ? 

This  case  is  full  of  wonders.  Stop  again!  A  thousand  miles 
separate  Babcock  from  the  theater  of  this  conspiracy.  He  never 
saw  a  distiller  here;  he  never  knew  one  here;  he  never  heard  of  one 
by  name;  he  was  as  ignorant  of  the  existence  of  the  distilleries  here 
as  Fitzroy  evidently  is  of  the  teachings  to  be  drawn  from  the  story 
of  "Annanias  and  Sapphira."  He  is  a  conspirator  in  whom  no 
knowledge  is  shown.  With  all  these  gigantic  efforts  in  the  way  of 
the  development  of  facts,  not  a  single  syllable  of  proof  showing, 
or  tending  to  show:  first,  either  that  he  suspected  the  character  of 
the  men  with  whom  it  is  said  he  was  conspiring;  second,  that  he 
ever  dreamed  of  any  guilty  purpose,  which  they  themselves  enter- 
tained, in  replying  to  questions  which  they  put  to  him;  third,  that 
he  ever  knew  even  that  there  was  a  distillery  here,  or  that  there 
were  facilities  in  that  way  of  perpetrating  frauds  against  the  rev- 
enues and  government  of  the  United  States.  I*  these  facts  had 


BABCOCK  CONSPIRACY  CASE.  435 

existed,  and  this  facility  of  telegraphing  and  writing  had  been 
opened,  don't  you  know  that  somewhere  or  other  there  would  have 
lurked  and  leaked  out  the  evidence  of  it?  It  is  idle  to  tell  us  that 
Babcock  knew  that  McDonald  and  Joyce  were  bad  men.  They 
have  not  proved  it.  If  he  knew  it,  they  would  have  proved  it.  It 
is  utterly  idle  to  tell  us  that  he  knew  they  entertained  any  guilty 
purpose  when  they  made  inquiries  of  him;  if  the  fact  had  existed, 
they  could  have  shown  it.  Removed,  as  I  have  said,  leagues  and 
leagues  from  St.  Louis,  no  one  of  these  self -convicted  distillers  that 
they  have  trooped  up  here  as  witnesses,  day  after  day  polluting 
and  besmearing  a  court  of  justice  by  their  unclean  presence,  haa 
hinted  that  he  ever  saw  or  heard  of  Gen.  Babcock,  except  as  a  pub- 
lic man. 

Now,  then,  Joyce,  the  principal  operator  in  this  great  piece  of 
scoundrelism,  was  a  revenue  agent  in  St.  Louis — appointed  by 
whom  ?  By  Babcock  ?  No.  By  the  President  ?  No,  again.  A 
clerk  in  the  department  in  Washington,  transferred  from  there  and 
appointed  a  revenue  agent  in  Missouri  by  the  commissioner  of 
internal  revenue.  There,  so  far  as  the  history  of  this  case  is  con- 
cerned, occupying  that  position,  we  first  find  John  A.  Joyce,  in 
December,  1870,  when  the  acquaintance  between  Joyce  and  Bab- 
cock opens  in  this  fashion.  Politics  and  political  feeling,  I  am  told, 
have  always  run  high  in  the  state  of  Missouri.  We  meet  this 
acquaintanceship  at  its  very  outset,  and  I  find  a  letter  from  Joyce 
to  Babcock,  inclosing  an  editorial  written  by  Joyce  in  favor  of  the 
administration,  of  which  Gen.  Babcock  forms  a  very  humble  part; 
and  in  that  way  the  acquaintance  thus  opened  proceeds.  Editorial 
after  editorial,  speech  after  speech,  does  the  active,  zealous  Joyce 
inclose,  month  after  month,  to  Babcock.  The  receipt  of  these 
inclosures  is  recognized,  and  all  the  correspondence,  leading  us  step 
by  step  right  down  to  the  very  moment  when  we  encounter  the 
first  dispatch,  which  shows  to  an  absolute  demonstration  that  that 
acquaintance  was  merely  political,  and  nothing  more.  The  learned 
counsel  for  the  Government  would  have  you  think  that  this  con- 
spiracy jumped  full-born  into  life  and  existence,  and  without  any 
preparation,  without  any  previous  talk  or  arrangement,  it  came  out 
complete  and  perfectly  rounded  in  all  its  parts,  on  the  occasion 
when  Ford  died  and  on  the  twenty-fifth  of  October,  1873,  when 
Joyce  telegraphed  the  fact  to  Babcock.  Now,  gentlemen  of  the 
jury,  there  would  have  been  no  difficulty,  if  there  had  been  other 
dispatches,  in  finding  them.  The  offices  have  been  ransacked;  the 
first  dispatch  which  they  offer  in  evidence  is  the  one  from  Joyce  to 


486  MODERN  JURY  TRIALS. 

Babcock;  and  from  that  they  would  have  you  infer  a  guilty  com- 
plicity between  the  parties  to  that  telegram. 
Now,  let  us  read  it: 

"Poor  Ford  ia  dead;  McDonald  is  with  his  body.  Let  the  President  act 
cautiously  on  the  successorship." 

This  dispatch  was  not  answered.  No  attention  whatever  was 
paid  to  it.  Can  you  guess  a  guilty  significance  from  that  dispatch  ? 
Col.  Broadhead  says  to  you,  "What  does  it  mean?"  I  answer 
him,  it  means  precisely  what  it  says.  It  means  that  Ford  was  dead. 
It  means  McDonald  was  with  his  body.  It  means  that,  in  that 
florid  and  declamatory  way  in  which  Joyce  was  accustomed  to 
express  himself,  and  in  the  consequential  manner  which  he  was 
accustomed  to  assume,  "Let  the  President  act  cautiously  on  the 
successorship."  Why  cautiously?  That  a  good  man  should  be 
appointed.  As  this  correspondence  shows  down  to  this  very  time, 
Babcock  had  every  reason  to  believe  that  Joyce  was  not  only  a 
zealous  friend  of  the  administration,  but  a  thoroughly  honest  man. 
Joyce  was  here  in  St.  Louis.  Now,  what  was  done?  Ford  was 
the  old-time  friend  of  the  president.  They  had  been,  as  I  shall 
have  occasion  to  show  you,  friends  for  a  quarter  of  a  century. 
Ford  had  died;  and  if  there  is  a  man  in  this  country  whose  heart 
warms  up  to  his  old  friends  and  those  he  has  known  in  his  earlier 
days,  it  is  the  President  of  the  United  States.  He  is  very  slow  to 
forget  them.  He  is  very  slow  to  bury  out  of  sight  any  act  of  kind- 
ness, that  in  the  olden  times  they  may  have  done  for  him.  He  is 
very  quick  and  ready  to  forgive.  The  old  friend,  who,  for  a  quar- 
ter of  a  century  he  had  known,  was  dead.  He  had  died  away  from 
home,  suddenly  and  alone;  and  with  that  thought  about  him,  Joyce 
knew  the  cord  he  would  strike,  and  telegraphed  to  the  private  sec- 
retary of  the  president,  "Poor  Ford  is  dead;  McDonald  is  with  his 
body." 

Gentlemen  of  the  jury,  is  that  evidence  of  guilt  ?  In  the  name 
of  God,  to  what  conditions  have  we  reached  that  that  is  evidence 
of  guilt  ?  What  will  you  have  a  man  do  in  order  to  avoid  the  con- 
clusions of  guilt;  or,  what  shall  he  not  do  in  order  that  he  shall  not 
be  considered  guilty?  On  the  very  day  that  Ford  died,  or  on  the 
very  day,  at  least,  that  this  dispatch  was  forwarded  from  Joyce  to 
Babcock,  the  sureties  on  the  bond  of  Ford,  interested  in  the  matter, 
telegraphed  to  the  president.  Let  me  read  the  telegram  to  you, 
and  let  me  also  explain  the  situation;  because,  when  this  situation 
is  fully  explained,  the  miserable  pretense  that  there  is  guilt  in  these 
dispatches,  fades  entirely  away  and  leaves  no  smear  or  stain  except 


BABCOCK  CONSPIRACY  CASE.  437 

upon  the  hands  and  tongues  of  those  who  have  made  the  charge. 
Ford  was  away  from  home  when  he  died.  His  sureties,  leading 
prominent  men  in  the  city  of  St.  Louis,  were  liable  for  all  the  acts 
of  his  deputies,  of  whom  they  knew  nothing. 

******** 

Now,  there  is  nothing  more  eloquent  than  testimony,  when  it  is 
intelligent.  Month  after  month  has  the  public  mind  been  filled 
with  this  idle,  this  wicked  clamor,  and  see  how  it  fades  away  ! 
This  is  from  the  deposition  of  the  president: 

*  *  *  *  *  *  * 

Another  curious  circumstance  :  Why  was  it  that  when  my  good 
friend  Col.  Broadhead  was  reading  Joyce's  letter  he  did  not  read 
the  vital  part  ?  Why  was  it  that  he  omitted  to  read  the  very  para- 
graph for  which  we  introduce  it  ?  Joyce  says  : 

******** 

"  Now,  I  am  in  earnest  in  recommending  Maguire,  having  failed 
myself.  Look  at  my  dispatch  to  the  president.  Do  not  noise  this 
fact  around  unnecessarily  that  I  myself  was  a  defeated  applicant.'' 

Now,  I  read  the  balance  of  this  letter,  gentlemen  of  the  jury, 
because,  although  it  is  dead  and  lifeless,  yet  it  is  eloquent  with  the 
truth  of  the  situation  which  these  parties  held  towards  each  other 
at  that  time.  "lam  sure,"  he  says,  "that  if  the  president  acts 
upon  the  recommendation  of  the  bondsmen  and  what  has  beei 
sent  from  the  officers,  the  interests  of  the  government  will  be 
secure  and  the  public  generally  will  be  satisfied.  Words  are  not 
sufficient  to  convey  to  yourself  and  the  president  the  pride  I  feel 
for  the  confidence  thus  far  displayed  in  me  in  connection  with  the 
vacancy.  I  shall  endeavor  in  my  future  action  to  continue  to  merit 
the  good  wishes  of  the  president,  and  you  will  please  convey  to 
him  my  most  hearty  thanks  for  his  kindness  and  confidence.  Now 
that  poor  Ford  is  dead  and  gone,  I  can  tell  you  truly  that  there 
are  but  few  men  on  earth  who  can  fill  his  place.  I  would  like  to 
telegraph  and  write  you  more  confidentially,  but  as  the  interests 
of  the  government  will  be  fully  protected  in  your  hands,  I  will 
say  nothing  further  on  the  collectorship  at  present."  Closing  with 
a  reference  again  to  Ford,  he  subscribes  himself,  "  I  am,  under  all 
circumstances,  your  friend,  etc.,  John  A.  Joyce." 

Now,  gentlemen  of  the  jury,  unless  since  these  investigations 
began  human  nature  has  changed  itself  ;  unless  the  whole  cur- 
rent of  human  affairs  has  been  reversed  ;  unless  human  motives 
and  the  methods  in  which  they  express  themselves  have  been  abso- 


438  MODERN  JURY  TRIALS. 

fately  revolutionized,  it  is  utterly  impossible  that  on  the  day  thai 
letter  was  dated  and  written  and  received,  Gen.  Babcock  held  to 
John  A.  Joyce  the  relation  of  one  conspirator  to  another.  Why, 
the  entire  purpose,  object,  scope  and  intent  of  the  letter  is  to 
impress  upon  its  recipients  the  idea  that  he  (Joyce)  is  not  engaged 
in  any  scheme  to  defraud  the  revenues,  but  that  he  is  an  honest, 
faithful,  vigilant  officer,  in  whom,  by  the  president  and  his  private 
secretary,  the  largest  measure  of  confidence  can  with  entire  safety 
be  reposed.  In  the  presence  of  these  facts — which  are  in  this 
record,  gentlemen  of  the  jury,  and  which  cannot  be  removed  from 
it — I  denounce  the  charge  there  made  against  this  defendant  as 
participating  in  the  appointment  of  Maguire  for  any  guilty  pur- 
pose as  wicked  and  cruel  to  the  last  degree.  In  the  presence  of 
these  facts,  of  these  dumb  and  boisterous  letters  and  telegrams, 
which  yet  speak  trumpet  tones,  I  would,  before  I  would  utter,  as  a 
juror  or  a  citizen,  a  verdict  of  guilty  to  be  adduced  from  them, 
tear  my  heart  from  my  bosom  and  see  it  lie  quivering  before  me. 
I  know,  gentlemen  of  the  jury,  that  you  possess  the  physical 
power  to  do  certain  things,  but  you  have  not  got  the  power — and 
if  you  had  you  would  not  undertake  to  exercise  it — to  adduce  gnilt 
from  that  series  of  dispatches.  Why,  gentlemen  of  the  jury,  what 
a  tremendous  price  you  would  have  to  pay  to  reach  such  a  con- 
clusion as  that.  A  broken  pledge,  a  violated  oath,  an  outraged 
conscience  would  be  the  price  which  you  must  pay  for  such  a  ver- 
dict on  these  facts  ;  and,  leaving  this  jury-box,  as  you  will  at  the 
conclusion  of  this  investigation,  if  you  say  that  they  mean  guilt, 
that  conscience,  which  you  always  carry  with  you,  would  pursue 
you  like  an  unrelenting  Nemesis,  to  the  last  days  that  you  live. 
It  would  dog  your  footsteps  like  a  shadow,  and  you  could  never 
shake  it  off,  and  into  your  very  souls  would  such  a  crime  burn,  and 
burn,  and  burn,  as  if  a  blazing  iron  had  been  plunged  into  it.  You 
can  reach  no  conclusion  of  guilt  from  that  series  of  dispatches,  and 
go  home  to  your  homes  and  look  your  wives  and  your  children  in 
the  face.  You  cannot  go  out  among  men  and  carry  a  sense  of  human- 
ity with  you  if  you  reach  a  conclusion  of  guilt  from  these  papers  that 
I  have  read  to  you.  Why,  rather  than  do  that,  you  had  better  take 
your  farms  and  your  houses  and  sink  them  deeper  than  ever  plum- 
met sounded.  If  you  do  it,  go  back  to  the  fields  that  you  have  left, 
to  the  children  that  look  to  you  for  an  example  in  the  future,  and 
say  to  them:  "  Here  I  come;  here  I  am;  soul,  conscience,  honor, 
all  gone,  because  Dyer  and  Broadhead  asked  me  to  let  them  have 
them  for  a  while."  Gentlemen  of  the  jury,  you  can  make  of  these 
facts  no  such  mistake  as  that.  There  they  are.  They  were 


BABCOCK  CONSPIRACY  CASE.  439 

planted  in  the  earth  when  the  cirumstances  occurred,  and  they  will 
remain  there  forever. 

The  waves  of  party  passion  may  beat  and  surge  against  them, 
but  they  will  resist  them  like  the  eternal  rocks  that  bound  and 
hedge  in  the  sea.  Is  it  not  better,  infinitely  better,  and  are  not 
our  hearts  all  lifted  up  and  exalted,  when,  getting  into  the  smoke 
and  fog  and  vapors  of  this  charge,  we  pour  the  glorious  sunshine, 
coming  straight  from  the  throne  of  the  Almighty,  into  it,  and  they 
are  dispelled,  and  we  breathe  the  pure,  clear  atmosphere  of  heaven 
again  ?  Coming  from  these  calumnies  and  slanders  with  which 
the  public  ear  has  been  deafened  for  these  long  and  dreadful 
months  that  have  passed,  it  seems  like  coming  out  of  the  close  and 
prisoned  walls  of  a  dungeon,  where  pestilence  reigns,  holding  our 
faces  and  our  breasts  out,  and  letting  the  clear  breezes  from  the 
hill-tops  blow  the  blessings  of  the  Almighty  into  the  face  and  soul. 
Isn't  it  splendid,  after  all,  lifting  ourselves  away  above  these  little 
prejudices  which  have  environed  us  ?  Isn't  it  grand  to  say, 
"  Thank  God  !  Republican,  Liberal  and  Democrat  alike,  the  great 
names  of  our  history  are  dear  to  us  alike;  it  is  a  delight,  the  like 
of  which  we  have  never  before  experienced;  it  is  a  glowing  delight, 
heavenly  almost  in  the  joy  which  it  gives  in  that  what  was  dark 
as  guilt,  we  find  innocence  so  perfect  and  complete  that  it  is  almost 
radiant  in  its  character.  I  cannot,  gentlemen  of  the  jury,  discuss 
these  questions  without  feeling  as  if  I  were  lifted  away  above 
myself,  as  if  there  were  an  inspiration  raining  down  upon  me  and 
upon  you.  If  there  is  anything  that  makes  a  man  noble  among 
men,  that  demonstrates  the  fact  that  there  are  things  about  us  and 
in  our  nature,  which  are  divine,  it  is  that  blessed  sense  of  eternal 
justice  which  prefers  to  believe  in  innocence  rather  than,  with  a 
satanic  malignity,  to  believe  in  guilt. 

If  your  honors  please,  it  distresses  me  very  much  to  be  compelled 
to  ask  further  favors  from  this  court,  but  I  feel  as  if  I  could  hardly 
proceed  another  ten  minutes. 

The  closing  words  were  extremely  touching  and  pathetic,  as  the 
speaker,  with  husky  voice  and  magnetic  power,  pictured  the  family 
scene  at  Washington;  his  eyes  beaming  with  the  fire  of  earnest 
conviction;  his  frail  form  trembling  with  emotion;  the  court-room 
hushed  to  a  painful  silence:  "He  is  not  guilty,  gentlemen;  he  is 
not  guilty.  I  feel  an  inspiration  settling  in  this  court-room, 
stretching  away  as  if  to  bear  the  glad  news  to  his  devoted  family, 
who,  in  his  humble  home  where  an  anxious  wife,  now  surrounded 
by  her  little  children,  are  kneeling,  watching,  praying,  looking  for 


440  MODERN  JURY  TRIALS 

his  deliverance  and  joyous  return  to  the  capital  of  his  country  he 
has  served  so  long,  so  faithfully,  and  so  well.** 

AKGUMKXT  OF  JUDGE  POBTZB. 

I»  rr  PLEASE  THE  COUBT: 

Gentlemen  of  the  Jury:  We  meet  as  strangers;  but  in  the 
course  of  two  weeks  in  the  discharge  of  our  respective  duties, 
and  the  kindness  and  patience,  the  marked  intelligence  with 
which  you  have  listened  to  the  evidence  and  arguments  in  this 
case,  make  us  all  feel  now  that  we  are  not  before  strangers* 
but  friends.  We  feel  that  we  are  not  before  a  jury  who 
regard  us  with  prejudice  or  unkindness.  We  believe  that  if  the 
evidence  had  been  such  as  to  lead  you  to  a  conclusion  of  guilt,  it 
would  have  been  with  sadness  and  pain  that  you  would  have  pro- 
nounced a  verdict  that  blasts  this  young  man's  name  and  character. 
And  when  we  find  that  the  evidence,  in  the  case  when  fully  dis- 
closed on  both  sides,  leads  only  to  a  conclusion  of  innocence,  we 
feel  that  you  will  rejoice  in  the  opportunity  of  pronouncing  by 
your  verdict  the  vindication  which  is  due  to  his  innocence  and 
integrity. 

The  friendship  and  confidence  with  which,  in  the  past,  Gen.  Bab- 
cock  has  honored  me  led  him  to  select  me  as  one  of  his  defenders. 
I  recommended  him  in  my  place  to  substitute  one  of  the  members 
of  your  own  bar — a  gentleman  of  national  reputation  and  far  my 
superior  in  ability,  but  the  defendant  very  naturally  felt  that  on 
this  trial,  upon  which  his  all  depended,  he  wished  to  be  represented 
by  the  friends  who  knew  him  and  trusted  him,  rather  than  by 
strangers  who  judged  him  only  by  the  multitudinous  calumnies  of 
the  hour.  Having,  as  I  have  and  have  had  from  my  first  know- 
ledge of  the  facts  in  this  case,  the  most  absolute  conviction  of  his 
innocence,  I  feel  grateful  to  him  that  I  am  privileged  to  stand 
before  you  as  his  advocate.  I  am  grateful  for  the  fact,  of  which, 
whatever  I  might  have  thought  before  I  reached  here,  I  am  now 
convinced  that  he  stands  before  a  jury — some  his  political  associates, 
some  the  representatives  of  other  political  parties  and  antecedents, 
but  one  and  all  just  men,  who  love  truth  and  will  vindicate  his 
innocence. 

The  connection  of  Gen.  Babcock  with  the  public  service,  and  the 
friendship  of  Gen.  Grant  have  given  him  a  prominence  which  he 
earned  by  merit  and  never  sought.  It  has  been  always  his  pride, 
as  it  is  to-day,  that  he  is  the  son  of  an  American  yeoman,  and  no 
such  man  stands  in  fear  of  injustice  before  a  jury  of  the  farmers  of 


BABCOCK  CONSPIRACY  CASE.  441 

Missouri.  If  the  fact  of  his  connection  with  President  Grant  and 
the  calumnies  of  the  newspaper  press  causes  his  case  to  be  pre- 
judged by  those  who  did  not  know  him,  the  developments  of  this 
trial  have  reversed  public  opinion  here,  and  he  receives  from  the 
leading  citizens  of  St.  Louis,  without  distinction  of  party,  the 
assurance  of  their  earnest  sympathy,  and  they  strengthen  our 
hands  by  their  hearty  God-speed  upon  every  hand.  Let  me,  for 
myself  and  my  associates,  express  our  grateful  thanks,  and  our 
cordial  and  sincere  acknowledgments  to  the  leading  counsel  for  the 
prosecution  for  their  manly  and  liberal  courtesy  to  the  advocates 
charged  with  the  defense  of  the  stranger,  and  our  appreciation  of 
the  eminent  and  masterly  ability  with  which  they  have  conducted 
this  prosecution,  although  in  a  spirit  which,  in  their  mistaken  zeal, 
would  lead  them  to  trample  an  innocent  man  into  the  grave.  They 
have  tried  the  case,  however,  according  to  their  own  intent,  fairly, 
but  in  our  judgment,  with  a  bitterness  toward  the  defendant  per- 
sonally such  as  I  never  saw  before  in  the  conduct  of  a  state  prose- 
cution. It  is  attributable  to  their  earnest  zeal,  and  to  their  avowed 
hostility  to  President  Grant.  They  do  not  affect  to  conceal  it. 
They  evidently  feel  that  every  stab  they  give  to  this  defendant  is 
a  thrust  through  him  at  the  president,  with  whom,  for  some  cause, 
they  seem  to  be  offended.  Why  they  should  strike  at  Gen.  Grant 
we  do  not  know,  unless  they  think  his  sworn  testimony  lies  in  the 
path  between  these  two  eminent  gentlemen  and  a  new  professional 
victory.  So  it  was  with  Andrew  Johnson,  who  preceded  Grant. 

He  was  a  president  without  a  party.  He  had  been  elevated  to 
that  office  against  the  voice  and  the  vote  of  the  Democratic  party, 
but  when  a  time  came  that,  in  the  interests  of  peace,  conciliation 
and  harmony,  exercising  his  best  judgment,  right  or  wrong,  he 
separated  himself  from  his  political  friends,  they  turned  upon  him 
with  the  charge  of  falsehood  and  of  treachery,  and  he  stood  alone, 
a  great  commander  without  an  army,  a  president  without  a  party. 
Foes  to  his  right,  to  his  left,  in  his  front,  in  his  rear,  and  each 
armed  with  javelins,  thrusting  at  his  honor  and  his  life.  The  news- 
papers condemned  him.  Not  content  with  that  condemnation, 
leading  members  of  the  house  of  representatives  caused  articles  of 
impeachment  to  be  preferred,  and  these  were  tried  before  the 
highest  judicial  tribunal  that  ever  was  convened  on  the  American 
continent.  The  ablest  men  in  the  house  conducted  the  impeach- 
ment as  managers  of  the  prosecution,  but  not  with  the  bitterness 
with  which  this  prosecution  has  been  conducted  as  against  this 
defendant.  They  were  earnest,  they  were  zealous,  they  were  able. 
They  did  their  utmost  to  secure  his  conviction.  They  were  men 


442  MODERN  JURY  TRIALS. 

the  like  of  whom  for  power  and  ability  has  rarely  appeared  in  any 
tribunal  on  earth.  But  he  was  tried  by  a  tribunal  over  which 
Chief  Justice  Chase  presided,  and  where  the  jury  who  were  to 
pronounce  the  verdict  were  the  senators  of  the  American  states. 
Those  senators  were  not  his  political  or  his  personal  friends.  A 
large  majority  of  them  were  his  political  adversaries,  driven  to 
indignation  by  a  supposed  betrayal  of  trust  reposed  in  him  by  the 
party  who  elevated  him  to  power.  It  embraced  many  bitter  per- 
sonal enemies.  But,  gentlemen,  the  case  went  to  them  upon  the  evi- 
dence. The  politicians  ceased  to  be  such.  The  senators  became 
sworn  jurors.  They  determined  the  case  not  upon  antecedent  pre- 
judice, but  upon  the  evidence  of  their  honest  convictions,  and 
Andrew  Johnson  was  acquitted.  The  newspaper  judgment  was 
reversed,  and  what  has  been  the  sequel  ?  After  the  expiration  of 
President  Johnson's  term,  Tennessee  returned  him  as  a  senator,  to 
the  very  capitol  in  which  he  had  been  arraigned  as  a  criminal.  When 
he  died — and  the  memory  of  that  event  is  still  fresh  in  our  recol- 
lections— in  that  very  capitol  his  accusers  became  his  eulogists, 
and  one  of  the  greatest  statesmen  of  the  country,  who  in  high 
party  times  had  voted  as  a  senator  for  President  Johnson's  convic- 
tion, stood,  but  a  few  months  since,  in  his  place,  in  the  same  senate 
shamber  where  he  cast  his  vote,  and  nobly  and  honorably  pro- 
claimed, not  only  to  his  peers  in  that  body,  but  to  the  country  and 
to  the  world,  that  in  his  present  judgment  Andrew  Johnson, 
against  whom  he  then  cast  his  vote,  lived  and  died  an  honest  man. 
Allow  me,  gentlemen,  to  recall  your  attention  to  some  of  the 
leading  and  undisputed  facts  to  which  I  had  occasion  to  invite 
the  attention  of  the  court  on  the  preliminary  argument,  and  which 
in  every  stage  of  the  case  must  be  constantly  borne  in  mind,  in 
order  to  reach  a  safe  and  just  conclusion.  I  shall  recur  to  them 
only  briefly  (for  it  may  well  be  that,  although  the  argument  was 
addressed  to  the  court,  you  may  recall  its  general  bearings)  to 
bring  back,  by  a  few  catch  words,  the  leading  ideas  then  suggested 
with  a  view  to  the  further  progress  of  the  argument. 


We  have,  then,  the  anomalous  case  of  a  conspiracy  sustained  by 
no  evidence  that  the  defendant  ever  met  the  conspirators — that  he 
ever  knew  of  their  meeting — that  he  ever  entered  into  an  agree- 
ment with  them,  or  that  he  ever  knew  of  any  agreement  they  had 
made  with  each  other.  Sustained  by  no  proof  that  he  ever  bar- 
gained for  or  ever  received  a  share  of  the  plunder,  and  by  no  proof 
that  he  ever,  orally  or  in  writing,  admitted  any  connection  with 


BABCOCK  CONSPIRACY  CASE.  443 

the  conspiracy,  or  that  any  one,  either  orally  or  in  writing,  com- 
municated to  him  the  fact  of  its  existence. 

Neither  of  the  counsel  makes  the  direct  assertion ;  neither  of  them 
believes  it  to  be  true;  neither  of  them  will  say  that  they  believe  it, 
but  they  pay  to  you,  gentlemen,  the  poor  compliment  of  supposing 
that  such  inuendoes  may  appeal  to  the  political  prejudice  of  some 
juror  in  your  midst.  It  is  unworthy  of  them.  I  do  not  reproach 
them  of  intentional  wrong,  but  I  submit  to  them  whether  it  is  a 
professional  device  which  even  in  their  zeal  to  blast  the  good  name 
of  this  defendant  is  worthy  of  their  position  and  reputation  ?  They 
were  driven  to  this  expedient  by  the  necessities  of  the  scuttled  and 
sinking  prosecution.  Gentlemen,  if  Gen.  Grant  was  not  a  party  to 
this  conspiracy,  if  he  was  not  privy  to  its  existence,  you  see — as  the 
prosecution  see — how  utterly  improbable  it  is  that  Gen.  Babcock 
was  one  of  the  confederates.  No  one  will  charge  him  with  infidel- 
ity to  his  chief.  He  has  held  a  position  in  the  confidence  of  the 
President  which,  with  his  conceded  and  eminent  ability,  if  he  had 
aspired  to  distinction  in  civil  life,  would  have  commanded  for  him 
almost  any  other  office,  at  home  or  abroad,  in  the  gift  of  the  Presi- 
dent. If  he  had  been  under  the  curse  of  cupidity  arid  avarice,  he 
could  have  turned  his  $6,000  a  year  as  an  officer  in  the  army  into  a 
salary  in  civil  life  which  would  have  enriched  him  in  a  single  year. 
What  would  be  the  measure  of  Gen.  Babcock's  infamy,  if  in  his 
relations  to  the  President,  he  had  been  capable  of  betraying  him? 
What  would  be  the  depth  of  his  degradation  if,  after  being  educa- 
ted at  the  expense  of  his  country  at  West  Point,  after  being  hon- 
ored in  peace  and  in  war  in  the  public  service,  still  holding  his 
commission  in  the  army,  he  had  been  capable  of  selling  the  govern- 
ment to  thieves,  and  dividing  with  them  the  price  of  his  own 
degradation  and  crime?  Gentlemen,  in  the  light  of  the  evidence 
the  prosecuting  attorney  cannot  believe  it.  No  honest  man,  after 
reading  this  testimony,  can  believe  it.  It  is  conceded  that  there  is 
no  direct  evidence  of  guilt.  They  tell  us,  however,  that  conspiracy 
is  a  secret  crime,  and  therefore  you  cannot  expect  clear  proof  of 
guilt.  Gentlemen,  is  that  a  reason  for  convicting  whoever  happens 
to  be  accused,  without  proof  of  his  guilt?  Murder  is  usually,  in 
its  worst  form,  a  secret  crime;  but  do  you,  therefore,  hang  whoever 
happens  to  be  accused,  without  clear  evidence  of  the  crime  ?  In 
this  case,  if  guilt  existed,  direct  proof  is  accessible,  though  it  is  not 
produced.  The  prosecution  have  each  of  the  actual  conspirators  in 
an  unyielding  vise,  and  a  single  turn  of  the  screw  can  compel  each 
man  to  speak  whatever  he  knows.  If  the  charge  were  true,  they 


444  MODERN  JURY  TRIALS. 

had  direct  proof  at  hand.  But  it  is  not  true,  and  therefore  the 
direct  proof  fails.  In  each  of  the  other  cases,  bear  in  mind,  gen- 
tlemen, they  had  direct  proof.  In  the  case  of  Joyce  it  was  oral 

and  in  writing,  positive  and  overwhelming. 

******** 

In  order  to  justify  the  inference  of  legal  guilt  from  circumstan- 
tial evidence,  the  existence  of  the  inculpatory  facts  must  be  abso- 
lutely incompatible  with  the  innocence  of  the  accused,  and  incapa- 
ble of  explanation  upon  any  other  reasonable  hypothesis  than  that 
of  his  guilt. 

Every  other  possible  supposition  by  which  the  facts  may  be 
explained  consistent  with  the  hypothesis  of  innocence  must  be  rig- 
orously examined  and  successfully  eliminated,  and  only  when  no 
other  supposition  will  reasonably  account  for  all  the  conditions  of 
the  case,  can  the  conclusion  of  guilt  be  legitimately  adopted. 

In  strict  conformity  with  these  sound  principles  of  reasoning  and 
inference,  Lord  Chief  Baron  McDonald  said  that  the  nature  of  cir- 
cumstantial evidence  was  this:  That  the  jury  must  be  satisfied  that 
there  is  no  rational  mode  of  accounting  for  the  circumstances 
except  upon  the  supposition  that  the  prisoner  be  guilty.  And  Mr. 
Baron  Alderson,  in  another  case,  with  more  complete  exactness, 
said,  that  in  order  to  enable  the  jury  to  bring  in  a  verdict  of  guilty 
it  was  necessary  not  only  that  it  should  be  a  rational  conviction, 
but  that  it  should  be  the  only  rational  conviction  which  those  cir- 
cumstances would  enable  them  to  draw. 

The  other  is  merely  referring  to  the  language  of  Chief  Justice 
Denio,  which  was  in  my  last  citation  at  page  145,  in  32  New  York, 
illustrating  this  doctrine  of  presumption  from  circumstances.  It 
was  a  question  of  arson:  "Suppose  the  presumption  that  the  pris- 
oner did  each  of  these  acts  was  equally  strong,  the  proof  as  to  one 
would  not  tend  to  prove  his  criminality  in  regard  to  the  other. 
We  cannot  presume  that  he  burned  the  barn  because  we  presume 
that  he  intended  to  burn  the  house.  One  presumption  will  not  aid 
the  other.  The  infirmity  which  attaches  to  the  one  equally  attaches 
to  the  other.  The  logic  upon  which  circumstantial  evidence  is 
based  is  this:  We  know  from  our  experience  that  certain  things 
are  usually  concomitants  of  each  other.  In  seeking  to  establish 
the  existence  of  one,  where  the  direct  proof  is  insufficient  or  uncer- 
tain, we  prove  the  certain  existence  of  a  correlative  fact,  and  then 
establish,  with  more  or  less  certainty,  according  to  the  nature  of 
the  case,  the  reality  of  the  principal  fact.  But  the  reasoning  is  a 
perfect  fallacy,  if  the  defect  of  proof  which  renders  it  necessary  to 
call  for  the  aid  of  the  collateral  circumstances  equally  attaches  to 


BABCOCK  CONSPIRACY  CASE.  445 

the  collateral  circumstances.  It  is  like  the  blind  leading  the 
blind." 

Gentlemen,  it  happens  to-day  that  the  man  who  is  on  trial  is  a 
stranger  to  you.  But  are  we  not  aware  of  the  vicissitudes  of  life  ? 
How  little  he  dreamed  one  short  year  ago  that  he  was  to  be  arraigned 
as  a  criminal,  a  conspirator  and  a  thief,  before  a  jury  of  those  upon 
whose  faces  he  had  never  looked  !  How  little  Andrew  Johnson 
dreamed  when  he  received  the  proud  token  of  the  confidence  of  the 
American  people  which  made  him,  in  the  course  of  events,  the  suc- 
cessor of  President  Lincoln,  that  within  the  short  time  of  his 
administration  he  was  to  be  arraigned  at  a  criminal  bar,  before  a 
tribunal  more  august  than  had  ever  before  assembled  in  this  coun- 
try !  And  how  little  do  we  know  what  the  future  has  in  store  for 
us  and  for  our  children  !  » 

The  merit  of  the  constitution  and  the  laws  is  this — that  no  man's 
liberty  can  be  taken  away;  no  man's  character  can  be  blasted  for 
crime,  except  upon  the  verdict  of  twelve  men,  and  upon  evidence 
so  clear  and  conclusive  that  it  shall  override  all  presumptions  of 
innocence  and  to  compel  a  jury  to  unite  with  one  accord  in  pro- 
claiming that  the  evidence  establishes  guilt  and  crime. 


ARGUMENT  OP  COL.  D.  P.  DYEB. 

IF  THE  COURT  PLEASE: 

Gentlemen  of  the  Jury — I  congratulate  you  upon  the  near 
approach  of  the  end  of  this  most  important  trial.  You  have  given 
to  it,  gentlemen,  for  more  than  two  weeks,  your  deliberate,  undi- 
vided, faithful  attention.  Having  been  assigned  to  close  the  argu- 
ment for  the  government  in  this  case,  I  feel  a  weight  of  responsi- 
bility resting  upon  my  shoulders  that  I  never  felt  before.  I  stand 
here  as  the  representative  of  the  government,  trying  to  enforce 
against  all,  whether  high  or  low,  rich  or  poor,  the  laws  of  the 
country.  I  feel  that  through  me,  humble  as  I  confess  I  am,  as 
unimportant  as  I  always  have  been,  I  feel  that  through  me  to-day 
must  speak  the  people  of  this  country,  who  are  the  nation,  and 
yourselves. 

And  in  approaching  the  discharge  of  duties  so  responsible  as 
these,  I  ask  your  kind  indulgence,  as  I  have  asked  the  Father  of 
us  all  to  sustain  and  support  me  while  I  undertake  to  represent,  in 
my  feeble  way,  the  interests  so  important  that  have  been  com- 
mitted to  my  charge.  It  is  a  sacred  duty  that  I  have  to  perform. 
I  would  be  unfaithful  to  myself  ;  I  would  be  unfaithful  tothegov- 


446  MODERN  JURY  TRIALS. 

ernraent  whose  officer  I  am  ;  I  would  be  unfaithful  to  the  dearest 
ties  of  my  life  if  in  this  presence  I  failed  to  do  my  whole  duty. 

Nine  months  ago  I  entered  upon  the  discharge  of  the  duties  that 
I  am  now  discharging.  I  came  here,  finding  seizures  of  property 
•worth  thousands  of  dollars,  which  had  been  male  by  the  public 
officers.  In  all  of  that  investigation,  from  that  time  to  this,  I  can 
lay  my  hand  upon  my  heart,  and,  in  the  presence  of  my  Maker, 
say  that  I  have  never  had  any  other  motive  in  view  than  the  faith- 
ful and  upright  discharge  of  my  duties  as  a  public  officer.  I  have 
never  during  that  time  sought  to  implicate  any  innocent  man. 
Nor  have  I  during  that  time  sought  to  shield  any  man  who  was 
guilty.  But,  as  long  as  I  occupy  this  position,  as  my  Maker  is  my 
helper,  so  long  will  I  undertake  to  present  fairly  and  honestly  to 
the  jury  that  try  these  cases  the  evidence  that  has  been  obtained 
and  presented  against  them. 

You  have  heard  a  most  remarkable  case.  You  have  heard  as 
well  a  most  remarkable  defense.  For  three  days  have  you  listened 
and  listened  to  the  arguments  of  distinguished  gentlemen  who 
have  presented  this  case  in  a  most  able  manner  to  your  considera- 
tion. I  feel  in  their  presence,  and  in  the  presence  of  this  court, 
my  own  insignificance  as  compared  with  theirs.  When  I  find  the 
defendant  arraigned  for  trial  in  this  court-room  defended  by  coun- 
sel of  world-wide  reputation,  I  feel  doubtful  of  the  ability  of  the 
government  to  make  plain  to  you  a  case  that  is  so  plain  to  us. 
And  that  defense — able,  ingenious  and  strong  as  it  has  been — has 
struck  you,  as  common,  plain,  sensible  men,  who  desire  only  to 
find  the  truth  in  this  case,  as  a  most  remarkable  one. 

The  distinguished  gentleman  who  argued  the  case  on  yesterday 
started  out  in  his  argument  by  saying  that  this  was  a  prosecution 
against  the  president  of  the  United  States,  and  that  there-  was 
some  personal  hostility,  upon  the  part  of  the  prosecution  toward 
the  president  of  the  United  States,  and  that  he  knew  of  no  reason 
for  it  except  that  the  president's  deposition  stood  in  the  way  of 
another  trial  at  this  bar.  The  president's  deposition  is  before  this 
jury.  He  has  been  examined  as  any  other  witness  has  been  exam- 
ined, and,  in  commenting  upon  his  testimony,  I  will  comment 
upon  it  with  the  same  independence  as  I  would  comment  upon  the 
testimony  of  any  other  witness  that  is  introduced  into  this  court. 
But  when  the  gentleman,  for  a  purpose,  seeks  to  put  the  prosecu- 
tion in  the  attitude,  as  his  language  would  seem  to  imply — that 
the  president  of  the  United  States  was  on  trial,  and  not  the 
defendant,  I  do  not  intend  that  the  red  flag  that  the  gentleman 
thus  flaunts  in  my  face  shall  be  taken  up  and  followed  to  battle 


BABCOCK  CONSPIRACY  CASE.  447 

As  well  might  he  say  that  the  president  of  the  United  States  was 
on  his  trial  when  Gen.  McDonald  was  on  trial.  As  well  might  he 
say  that  the  president  of  the  United  States  was  on  trial  when 
every  officer  in  this  city  was  on  trial,  as  to  say  that  the  president 
of  the  United  States  is  on  trial  because  Gen.  Babcock  is  on  trial. 
Each  of  them  held  official  position  under  the  government.  Each 
of  them  held  official  position  under  the  one  or  the  other  branches 
of  the  government,  and  yet  he  comes  and  says  to  this  jury  that 
for  some  reason,  and  he  supposes  the  reason  to  be  that  the  presi- 
dent's deposition  stands  in  the  way  of  this  prosecution  ;  that  that 
is  why  during  all  this  time  there  have  been  some  unfriendly  feel- 
ings towards  the  president  of  the  United  States.  And  for  the  pur- 
pose, possibly,  of  arousing  in  the  mind  of  any  man  on  that  jury 
who  happens  to  be  a  republican,  and  for  the  purpose  of  arousing 
in  all  your  minds  just  indignation  against  an  assault  upon  the 
president  of  the  United  States,  he  says  that  for  some  reason  or 
other  this  prosecution  has  shown,  during  this  trial,  an  animosity 
against  the  president  of  the  United  States. 

I  do  not  intend  that  the  adroitness  of  the  gentleman  shall  put  me 
in  the  attitude  of  an  assault  upon  the  administration,  and  by  twist- 
ing the  president  of  the  United  States  to  the  front  before  this  jury 
to  hide  and  shield  their  client  behind  the  back  of  the  president  of 
the  United  States.  I  intend  to  bring  him  from  behind  the  back  of 
the  president  of  the  United  States,  and  by  the  president's  depo- 
sition and  by  the  testimony  in  this  case,  I  intend  that  he  shall 
stand  upon  his  own  merits,  and  not  undertake  to  wring  from  the 
hands  of  this  jury  a  verdict  by  saying  that  it  must  necessarily 
involve  the  president  of  the  United  States. 

What  prosecuting  officer  has  charged  it  here  ?  Who,  during 
this  entire  trial,  has  said  anything  of  that  kind  ?  I  am  sure  Mr. 
Broadhead  did  not  do  it.  I  am  quite  sure  in  my  opening  speech 
to  the  jury  I  have  not  done  it;  and  during  this  entire  trial  not  one 
word  in  examination  in  chief  or  cross-examination  has  been  spoken 
which  would  show  it  to  the  mind  of  a  single  man.  And  yet  for 
one  hour  he  undertakes  to  defend  the  president  of  the  United 
States  whose  good  name  he  says  is  involved  in  this  controversy. 
The  president  of  the  United  States,  sensible  as  these  gentlemen 
deem  him  to  be,  and  sensible  as  they  say  he  is,  will  not  thank 
counsel  for  raising  an  issue  in  the  trial  of  an  offender  against  the 
laws  of  the  country  by  bringing  him  forward  and  saying  that  your 
verdict  must  necessarily  involve  him. 

That  is  the  attitude  that  I  am  said  as  an  officer  of  this  govern- 
ment to  occupy  before  you.  He  refers  to  these  things,  and  I  have 


448  MODERN  JURY  TRIALS. 

heard  it,  too,  by  rumor,  by  small  men  who  never  yet  arose  to  the 
magnitude  of  an  honest,  upright  discharge  of  a  public  duty.  I 
have  heard  that ;  but  when  it  comes  in  the  shape  as  it  has  come  to 
this  jnry  by  the  representative  of  the  defendant,  it  then  becomes 
my  duty  to  speak  plainly  of  the  matter,  as  I  shall  speak  of  it- 
What  motive  should  actuate  me  in  a  charge  of  that  sort  ?  Is  there 
any  political  reason  why  I  should  do  it  ?  There  is  not  a  man  upon 
that  jury,  nor  one  within  the  sound  of  my  voice,  that  does  not 
know,  as  far  as  political  opinions  are  concerned,  that  my  own 
opinion  has  been  with  the  Republican  party  in  this  country.  Why 
should  I  assault  General  Grant  ?  I  voted  for  him  as  the  nominee 
of  the  Republican  party  in  both  national  conventions  that  nomi- 
nated him;  I  voted  for  him  at  the  polls  at  both  elections  at  which 
he  was  a  candidate ;  and  what  motive  or  political  end  is  there  in 
saying  I  have  any  enmity  against  President  Grant,  and  that  I  want 
to  gratify  it  by  the  conviction  of  General  Babcock?  Is  there 
anything  personal  in  the  matter?  There  cannot  be  anything  per- 
sonal in  it,  because  nine  months  ago  with  his  own  hand  he  signed 
a  commission  that  authorizes  me  to  speak  here  to-day.  Then,  I 
say,  as  far  as  concerns  the  motive  that  the  gentleman  impugns  to 
the  prosecution  in  this  case,  it  utterly  fails;  there  is  nothing  of  that, 
But,  sir,  I  do  not  intend  in  the  examination  of  this  case  that  because 
General  Babcock  is  the  private  secretary  of  the  president  of  the 
United  States  that  he  shall  escape  because  he  is  the  private  secre- 
tary of  the  president.  I  would  try  him  as  I  would  try  Basset.  I 
would  try  him  as  I  would  try  Everest,  or  McFall,  or  McDonald,  or 
Joyce.  He  knows,  this  defendant  knows,  and  the  gentleman 
knows,  that  as  far  as  any  personal  hostility  to  the  defendant  is 
concerned,  that  that  does  not  lurk  within  my  bosom.  He  knows 
that,  because  until  October  last  I  never  spoke  to  the  defendant. 
But  in  the  discharge  of  my  duties,  gentlemen,  in  the  honest, 
upright,  faithful  discharge  of  my  duties  before  the  grand  jury 
when  the  testimonv  was  disclosed  and  men  summoned  from  the 
body  of  this  district  to  sit  in  the  grand  jury  room  and  pass  upon 
these  questions,  saw  that  testimony,  what  must  I  do  ?  Must  I,  by 
virtue  of  my  position,  smother  the  testimony,  and  fail  to  bring 
this  man  to  punishment  at  the  bar  of  this  court  ?  Must  I,  because 
I  was  a  Republican,  and  he  was  a  Republican,  and  the  secretary 
of  a  Republican  president  who  was  elected  under  my  vote — must 
I  stand  and  shield  that  man  by  virtue  of  my  position  ?  If  I  had 
done  it,  gentlemen,  I  never  could  have  looked  my  children  in  the 
face,  nor  would  I  have  been  able  to  look  the  honest  people  of 
this  country  in  the  face  any  more.  *  *  *  * 


BABCOCK  CONSPIRACY  CASE.  449 

These  gentlemen  are  terribly  afraid  of  a  public  clamor.  They 
talk  about  public  sentiment,  and  talk  about  it  all  blowing  over  in 
a  minute — it's  all  right.  You  have  got  nothing  to  do  with  public 
sf  ntiment.  You  have  got  nothing  to  do  with  the  opinions  of  the 
outside  world.  You  have  got  nothing  to  do  with  the  newspapers. 
And  yet  the  gentleman  makes  an  assault  upon  newspapers  from  one 
end  of  the  land  to  the  other,  because  the  newspapers,  he  says,  have 
prejudged  this  case,  and  done  this  defendant  great  wrong.  Why 
all  of  that,  gentlemen  ?  Why  all  of  that  kind  of  talk  to  this  jury  ? 
It  is  a  most  extraordinary  defense  that  Judge  Porter  presents  to 
this  jury.  He  starts  out  here  for  an  hour  with  his  applause  of 
Gen.  Grant,  and  says  he  is  a  most  remarkable  man.  Suppose  we 
all  admit  it.  Suppose  we  do  admit  it.  He  defends  Gen.  Grant 
here  for  an  hour  as  if  Gen.  Grant  was  on  trial.  He  then  drops 
Gen.  Grant  and  brings  up  before  this  jury  and  tries  over  again 
Andy  Johnson,  who  is  dead  and  gone  long  ago.  [Laughter.]  He 
undertakes  to  strike  the  Republicans  upon  this  jury. 

******** 

Now  for  the  story;  and  I  tell  it  with  this  preface,  in  order  that 
my  motives  in  telling  it  may  not  be  misconstrued.  It  reminds  me 
of  an  anecdote  I  heard  a  long  time  ago  of  a  most  celebrated  physi- 
cian living  in  a  neighborhood  where  he  was  called  to  see  a  lady  in 
her  confinement,  and  on  the  day  after  he  met  a  neighbor,  who  says 
to  him: 

"Doctor,  how  is  your  patient  ?" 

"  Well,"  the  doctor  says,  "  the  child  is  dead,  and  the  mother  will 
die,  but  by  the  aid  of  the  Lord  I  think  I  can  save  the  old  man." 

Now,  here  in  this  particular  instance,  I  can  only  say  that  the 
gentleman  undertaking  to  defend  the  president  when  there  was  no 
accusation  against  him,  believes  that  the  child  is  dead,  that  the  old 
woman  will  die,  but  by  a  little  help  he  can  save  the  old  man. 
Against  what  ?  That  has  been  the  whole  defense  here,  to  make 
you  believe,  and  to  impress  upon  your  minds,  that  the  president  of 
the  United  States  was  upon  trial,  and  if  his  speech  had  any  pur- 
pose in  the  world  it  was  to  save  the  president  from  a  charge  that 
the  prosecution  has  not  made  against  him,  And  yet  that  is  the  way 
in  which  this  case  is  presented  to  the  jury. 

Then  here  is  my  friend  from  Chicago.  I  was  particularly 
amused  at  his  speech.  He  is  a  most  eloquent  gentleman.  He  is 
a  man  of  great  adroitness  and  ability.  He  examines  a  witness 
very  carefully  and  ably.  He  makes  a  speech  that  is  just  aa 
characteristic  of  him  as  his  examination  of  a  witness  is  charac- 
teristic of  him.  He  comes  here  from  Chicago,  and  the  first  thing 
29 


450  MODERN  JURY  TRIAL8. 

that  he  does  after  he  gets  here  is  to  convert  this  jury  into 
steam  engines — each  of  them.  He  says  to  the  jury,  "  If  yot 
dare  to  convict  Gen.  Bahcock,  your  consciences,  like  a  trip-hammer, 
will  beat  against  your  breasts  for  all  time  to  come,  and  will  be  as  a 
red-hot  iron  run  through  your  consciences,  that  will  burn  !  burn  !  ! 
burn  ! !  ! — and  that  yon  will  never  get  rid  of."  And  thus  you  are 
all  converted  into  regular  engines,  for  you  have  got  in  your  con- 
sciences something  that  will  follow  you  to  your  grave,  and  this 
fearful  iron  that  he  brings  here — this  terrible  trip-hammer  that 
must  beat  against  your  breasts  and  that  must  follow  you  always  1 
******** 

Appeals  have  been  made  in  various  ways,  after  talking  about 
public  sentiment  and  newspapers;  appeals  have  been  made  to  the 
sympathy  of  the  jury;  and  here  my  friend  Mr.  Storrs,  eloquent  as 
he  is,  undertakes  to  get  to  the  gate  Fitzroy  and  his  man  McGill, 
and  he  says  that  when  he  gets  there,  St.  Peter,  the  good  watchman, 
will  say  to  Fitzroy,  "  Stand  back,"  to  McGill,  "  Step  in."  Now  I 
could  appreciate  that  from  a  gentleman  coming  from  any  other 
place  than  Chicago,  but  the  idea  that  a  man  living  in  Chicago 
should  know  anything  about  the  gate  or  have  any  idea  about  it ! 
It  reminds  me  of  some  fellow  that  died  in  Chicago  years  ago,  and 
he  went  and  applied  for  admission,  and  the  gatekeeper  says: 

"  Where  are  you  from  ?  " 

"Chicago." 

"Ah!  "he  says,  "I  guess  you  are  mistaken;  there  is  no  such 
place  as  Chicago." 

"Why,  yes,"  says  the  man;  "give  me  a  map  of  the  United 
States  and  I  can  show  you  that  there  is  such  a  place  as  Chicago." 

And  sure  enough  he  pointed  out  Chicago  on  the  lake  and  showed 
it  to  him. 

"  Well,"  he  says,  "  I  think  that  that  is  at  least  evidence  tending 
to  show  that  there  is  such  a  place  as  Chicago,  and  there  being  evi- 
dence tending  to  show  that  there  is  such  a  place  as  Chicago,  I 
guess  we  will  admit  you;  but,  my  friend,  you  are  the  first  man  that 
ever  applied  for  admission  from  the  city  of  Chicago." 

But  here  he  is.  He  gets  up  and  delivers  an  address,  and  gives 
you  most  beautiful  pictures  about  what  is  to  happen  there  in  that 
great  day  when  Fitzroy  and  McGill  and  all  of  them  stand  there, 
and  he  says  this  poor,  lame,  halting  postman  will  bring  up  the 
*-ear.  Well,  he  ought  to  start  now,  if  he  is  a  little  lame,  and  try 
and  get  there. 

The  gentleman  has  spoken  beautifully  and  feelingly  of  Gen. 
Babcock  and  his  family.  These  are  precincts  that  are  too  sacred 


BABCOCK   CONSPIRACY  CASE.  451 

for  me  to  enter.  The  precincts  of  the  home  of  any  man  in  this 
land — whether  he  be  a  defendant  or  not — are  too  sacred  for  me  to 
enter,  and  I  will  not  attempt  it;  but  I  can  only  remind  these  gen- 
tlemen, when  they  are  making  these  feeling  remarks  in  reference  to 
the  home  and  family  of  the  defendant,  that  around  the  hearth- 
stone of  poor  Fitzroy — a  man  who  is  denounced  as  a  thief  and  per- 
jurer, a  man  who  is  denounced  here  before  this  court  as  unworthy 
of  belief — that  there  may  be  around  his  hearth-stone  little  ones 
that  are  as  dear  to  him  as  yours  are  to  you,  and  that  they  may  be 
kneeling  at  their  mother's  knee,  as  the  defendant's  children  have 
knelt.  Oh,  how  unkind  it  is  for  you  to  stand  here  before  this  jury 
and  assault  a  man  like  him,  when  his  testimony  does  not  implicate 
in  the  slightest  degree  this  defendant !  How  hard  and  unkind  it 
is  for  you  to  refer  to  this  man,  whose  testimony  is  not  relied  upon 
in  this  case  to  convict  Gen.  Babcock,  but  whose  testimony  alone 
goes  to  show  the  extent  and  scope  of  this  conspiracy.  Gentlemen, 
it  is  hard. 

There  are  those  associations  that  are  around  a  man's  own  hearth- 
stone, that  even  a  man  in  his  distress  does  not  want  to  say  anything 
about.  But  when  these  gentlemen  appeal  in  this  way  to  your  sym- 
pathies, may  I  not  ask  you  to  look  over  all  of  these  men  that  have 
come  here — all  of  them  young  men — nearly  every  man  who  has 
been  upon  this  witness-stand,  a  man  hardly  yet  thirty-five;  men, 
who,  with  bright  hopes  and  prospects  before  them,  and  with  bright 
promises  held  out  before  them,  have  been,  by  testimony  that  could 
not  be  disputed,  forced  to  come  into  this  court-house  and  hold  up 
their  hands  and  say,  "We  plead  guilty  to  these  charges  ! " 

But  in  the  presence  of  all  this,  must  we  hesitate  to  do  our  duty  ? 
In  the  presence  of  this,  must  we  stop  and  debate  in  our  own  minds 
as  to  whether  we  must  execute  the  laws  ?  Here  we  find  millions 
and  millions  of  the  public  treasure  that  has  been  stolen  and  taken 
away;  and  while  the  gentleman  speaks  for  his  client  I  speak  for 
mine,  and  that  client  is  the  people,  from  one  end  of  the  land  to  the 
other.  I  speak  for  the  rich  man,  with  his  thousands;  I  speak  for 
the  miner,  in  his  dark  home  in  the  bowels  of  the  earth;  I  speak  for 
the  thousands  and  thousands  of  poor  in  this  land,  who,  as  they 
kneel  down  to  say  their  prayers,  look  only  to  Him  when  they  say, 
"Give  us  this  day  our  daily  bread."  It  is  the  people  of  this  land 
that  are  clamoring  for  the  execution  of  the  law.  It  is  the  people 
who  after  all  these  developments  have  been  made,  see  the  extent  of 
this  conspiracy,  and  through  you  ask  that  the  laws  of  this  land  be 
enforced,  and  that  public  honor  be  vindicated,  and  when  the  gen 
tleraan  says  that  forty  millions  of  people  are  looking  to  you  to-day, 


452  MODERN  JURY  TRIALS. 

and  that  all  of  the  cities  of  Europe  are  looking  here,  it  is  true, 
Because,  gentlemen,  if  the  American  people,  American  juries  and 
American  courts  are  not  able  to  protect  themselves  against  these 
wrongs  that  have  been  done  to  the  public  treasury,  then  I  say  your 
nation  is  a  myth — gone. 

Acquitted. 


RAYMOND-HILL    CASE. 

Washington,  D.  0.,  April,  1880. 

BBLVA  A.  LOCKWOOD,  the  "  Portia  of  American  bar,"  the  first 
female  lawyer  ever  admitted  to  practice  in  the  United  States 
Supreme  Court,  has  since  acquired  considerable  notoriety  and  a 
lucrative  practice.  She  is  in  the  prime  of  middle  life,  finely 
formed,  of  easy  manners,  eloquent  delivery  and  full  of  a  woman's 
sense  of  justice  and  hot-tempered  eloquence.  In  her  absence,  the 
famous  Hill  Case  came  up  on  motion.  Without  giving  any  notice 
of  his  intended  action,  defendant's  counsel  moved  to  strike  the  case 
from  the  docket,  and  at  the  time  took  occasion  to  press  severe 
strictures  upon  the  action  of  the  plaintiff  and  her  purported  attor- 
ney, pronouncing  the  whole  thing  a  conspiracy  and  blackmailing 
business. 

His  honor  overruled  the  motion  and  promised  to  accord  Mrs. 
Lockwood  a  hearing  on  Saturday.  She  came  into  the  court  on  that 
morning,  and  expecting  a  lively  time,  the  chamber  was  crowded 
with  attorneys  and  spectators.  Her  first  step  was  to  ask  for  judg- 
ment on  the  ground  that  the  defendant  had  failed  to  enter  any  plea 
in  the  case. 

Mr.  BEN  DAVENPORT,  who  appears  with  Mr.  Merrick,  had  on 
that  morning  filed  a  demurrer  to  the  bill  as  bad  in  substance  and 
improvidently  brought,  and  rising,  said :  "  May  it  please  the 
court — " 

Mrs.  LOCKWOOD — "  You  are  not  in  this  case." 

Mr.  DAVENPORT — "  That  makes  no  difference  to  you;  but  I  am.** 

Mrs.  LOCKWOOD — "You  are  not  of  record." 

Mr.  DAVENPORT — "  I  only  wish  to  say  that  I  protest  against  her 
speaking,  unless  it  is  to  the  motion." 

Mrs.  LOCKWOOD — "  I  have  a  right  to  be  heard  in  my  own  vindi- 
cation." 


RAYMOND-HILL  CASK  463 

His  HONOR — "Well,  Mrs.  Lockwood,  if  you  can  conclude  in  five 
minutes,  you  can  proceed." 

Mrs.  LOCKWOOD  then  proceeded,  and  spoke  as  follows: 

"  If  your  honor  please,  for  the  first  time  in  the  seven  years  of  my 
practice  before  this  court,  I  rise  to  a  question  of  privilege.  I  come 
to  ask  leave  to  defend  myself  against  the  foul  aspersions  cast  upon 
me  on  Wednesday,  in  your  presence  and  in  my  absence,  and  in  the 
presence  of  these  gentlemen,  by  a  hitherto  honored  member  of  this 
bar.  I  refer  to  the  motion  made  to  strike  from  the  docket  of  this 
court  the  suit  of  Raymond  v.  Hill,  No.  21,680 — a  suit  in  which  no 
pleadings  have  ever  been  filed,  no  replication  or  issue  joined,  and 
which  has  never  been  calendered — a  suit,  your  honor,  in  which 
there  has  never  been  an  attorney  of  record  for  the  defense,  until 
the  very  moment  when  this  learned  and  honorable  attorney  comes 
into  court  and,  with  the  sublime  simplicity  of  a  child,  asks  your 
honor  to  dismiss  a  suit  in  which,  even  yet,  he  has  no  part  or  lot. 
He  comes  in  here  without  notice  to  the  attorney  of  record,  tells 
your  honor  he  does  not  deem  her  worthy  of  notice  (he  may  here- 
after), declines  to  give  her  notice,  and  then,  like  a  brave  and 
valiant  knight,  proceeds  not  only  to  traduce  her  behind  her  back, 
but  to  state  things,  without  substantiation,  that  are  unmitigatedly 
and  unqualifiedly  false. 

"  This  learned  attorney  states  that  he  makes  this  motion  because 
I  have  filed  this  cause  without  the  authority  of  my  client,  while  he 
holds  in  his  hands  the  papers  indorsed  by  her  signature,  which  he 
claims  to  know,  and  attested  by  her  solemn  oath,  but  he  neglects 
to  tell,  or  to  show,  to  the  court  by  what  authority  he  comes,  for 
neither  plea,  nor  answer,  nor  demurrer,  nor  power  of  attorney, 
signed  by  his  client,  attest  his  authority  in  this  case.  He  claims 
to  be  the  expounder  of  law,  but  ignores  its  plainest  precepts;  an 
honored  member  of  the  bar,  but  forgets  his  honor  when  he  deals 
with  a  woman.  And  this  is  not  the  first  instance  on  the  records  of 
this  court  in  which  this  attorney  has  been  guilty  of  unprofessional 
conduct.  He  tells  this  court,  in  my  absence  (he  dared  not  repeat 
it  in  my  presence)  that  he  has  several  affidavits  in  '  his  possession 
bearing  upon  the  general  matter  out  of  which  this  case  grows,  but 
that  as  they  do  not  directly  affect  the  merits  of  the  question  as  to 
the  attorney's  authority  from  the  plaintiff  to  institute  it,  he  does 
not  deem  it  necessary  to  file  them  in  support  of  this  his  unprece- 
dented motion.'  Your  honor,  ten  thousand  affidavits  like  the  one 
the  man  Small  filed  herein,  guilty  of  subornation  of  perjury,  as 
shown,  would  have  as  little  effect  upon  the  status  of  this  case  as 
the  opinion  of  a  condemned  man  on  the  statute  under  which  be  is 


454  MODERN  JURY  TRIALS. 

sentenced.  He  says  that  there  may  be  occasion  hereafter  to  bring 
them  forward,  intimating  that  he  now  holds  them  in  terrorem  over 
our  del'enseless  heads  to  hold  us  in  subjection  and  to  chastise  us 
with  hereafter.  Is  this  professional  ?  Is  this  honorable?  Is  this 
the  practice  of  the  attorneys  of  this  bar?  But  mark  !  He  proceeds 
as  follows:  'These  affidavits  establish  conclusively,  and  to  my 
entire  satisfaction,  that  this  case  is  one  of  the  manifestations  of  a 
conspiracy  against  the  defendant  organized  by  a  combination  of 
some  of  the  lowest  and  most  debased  of  people,  uniting  with  some 
who  are  not  in  appearance  so  degraded;  but,  altogether,  they  con- 
stitute a  small  band  of  the  lowest  and  basest  and  infamous  and 
prominent.'  What  does  he  mean  and  whom  does  he  mean  by  these 
insinuations?  Has  he  gone  quite  mad?  Has  his  fear  of  me  and 
of  my  presence  magnified  me  into  an  army — into  a  whole  rebellion 
boiled  down  ?  What  does  the  learned  attorney  mean  by  '  this  case 
being  one  of  the  manifestations  of  a  conspiracy'?  We  are  not  in  a 
spiritual  court.  If,  as  he  charges,  I  am  a  conspirator  to  ruin  the 
moral  character  of  the  distinguished  gentleman  who  is  the  defend- 
ant, and  to  impair  his  political  influence  in  his  senatorial  capacity 
in  regard  to  matters  now  pending  before  the  councils  of  the  nation, 
then,  your  honor,  I  am  guilty  of  high  treason,  the  highest  crime 
known  to  the  state;  and  if  this  attorney  had  believed  his  own 
words,  he  would  have  caused  my  arrest  before  I  left  this  court- 
room yesterday,  and  it  would  have  been  his  duty  as  a  loyal  citizen 
to  have  done  so.  Aye  !  he  would  have  summoned  me  to  this  court 
room  to  defend  myself  against  so  gross  a  charge.  Aye,  sir  1  these 
words  were  not  intended  for  the  furtherance  of  justice,  not  for 
honorable  debate,  but  to  awaken  prejudice  and  suspicion,  and  to 
influence  exparte  the  action  of  this  court.  And  I  desire  to  say  here 
that  I  have  no  animosity  against  the  defendant  in  this  cause,  and  I 
could  not,  if  he  had  one,  injure  his  moral  character.  Character, 
your  honor,  inheres  in  the  individual;  it  is  the  man — qualities 
impressed  by  nature,  to  which  I  could  not  add  or  detract. 

"  Who,  then,  are  these  dangerous  conspirators  ?  Myself,  and 
this  hunted  and  unfortunate  woman  ?  This  babe  without  a  father  ? 
Where  are  these  lowest  and  most  debased  of  people  ?  If  he  refers 
to  me,  your  honor,  I  challenge  him  to  produce  my  record;  if  he 
refers  to  my  client,  I  indignantly  deny  the  charge,  and  throw  back 
in  his  teeth  the  base  calumnies  that  have  been  perpetrated  against 
her.  'Uniting  with  some,'  he  goes  on  to  state,  'who  are  not  so 
degraded,  but  altogether  they  constitute  a  small  band  of  the  lowest 
and  basest  and  the  infamous  and  prominent.'  A  small  band, 
indeed,  your  honor — two  weak  women,  magnified  not  only  into 


RAYMOND-HILL  CASE.  455 

state  conspirators,  but  into  monsters,  the  one  hungering  for  bread, 
the  other  pursuing  her  daily  avocations.  And  just  here:  I  have 
never  at  any  time  consulted  any  person  except  my  client  about  the 
bringing  or  the  prosecuting  of  this  suit  with  the  exceptions  of 
Benjamin  H.  Hill,  jr.,  and  James  Banks.  If  these  are  the  con- 
spirators to  whom  this  learned  attorney  refers,  then  to  a  certain 
extent  I  agree  with  him,  and  pause  to  admit  that,  after  repeated 
interviews,  they  did  induce  this  poor  woman  to  go  back  on  her 
word,  after  threatening  me  with  arrest  for  conspiracy  and  black- 
mail, if  I  dared  to  bring  this  suit.  Since  my  admission  to  the  bar 
of  this  court,  and  the  taking  of  its  oath  of  office,  I  have  only  done 
my  duty  to  it  and  to  my  clients.  My  professional  honor  is  worth 
more  to  me  than  money,  and  I  allow  no  man  to  assail  it  with 
impunity,  even  though  he  be  my  senior  at  the  bar.  I  have  not  yet 
sunk  so  low,  nor  have  been  so  devoid  of  business  as  to  bring  a 
pauper  suit  against  the  wishes  of  my  client;  nor  have  I  been  so 
poor  and  abject  as  to  levy  blackmail  against  a  United  States  sena- 
tor for  the  purpose  of  extorting  from  him  a  few  paltry  dollars. 
My  crime  has  been  that  I  have  sued  a  senator  as  I  would  have  sued 
any  other  man;  that  I  have  asked  him  to  remember  the  ties  of 
nature  as  I  would  have  asked  any  other  man;  that  I  have  asked 
him  to  keep  his  pledges  as  any  honorable  man  would  have  done; 
aye,  that  I  have  befriended  this  unfortunate  woman,  who,  like 
Banquo's  ghost,  will  not  down.  I  am  charged  with  conspiring  to 
impair  the  political  influence  of  this  distinguished  defendant. 
Your  honor,  it  was  not  until  this  learned  attorney  had  thus  deliv- 
ered himself  that  I  knew  that  he  had  any  political  influence.  I  do 
not  yet  know,  your  honor,  what  the  important  matters  now  pend- 
ing before  the  councils  of  the  nation  are  in  which  this  great  sena- 
torial brain  is  busied.  I  am  innocent  of  political  intrigue  or  of 
political  aspirations  other  than  the  one  great  effort  which  has  been 
a  part  of  my  life-work,  to  place  my  sister  woman  on  an  equality 
with  man.  I  demand,  your  honor,  as  our  right  that  the  affidavits 
alluded  to,  which  this  learned  attorney  says  'show  the  object  of 
this  conspiracy,'  be  produced.  It  is  our  right  that  we  may  be  able 
to  meet  fact  with  fact,  and  falsehood  with  refutation.  As  it  is,  a 
hundred  innocent  people  are  suffering  under  the  imputation  of  con- 
spiring with  me.  Are  they  black  or  white,  men  or  women,  demo- 
crats or  republicans?  and  what  have  I  to  gain,  and  what  is  to  oe 
my  reward  ?  Is  it  not  just  possible,  and  more  than  probable,  that 
this  monster  conspiracy  had  its  inception  and  its  origin  in  the  fer- 
tile brain  of  this  attorney  and  his  coadjutors  ? 

*  ^.nd  I  desire  to  say  here,  your  honor,  that  my  connection 


466  MODERN  JURY  TRIALS. 

this  case  Las  been  entirely  honorable  and  above-board.  I  have  had 
no  collusion  or  consultation  with  any  party  or  parties  in  regard  to 
it.  I  have  brought  this  suit  precisely  as  I  have  done  in  similar 
cases,  because  I  believed  there  was  an  occasion  for  it,  and  as  I  shall 
do  again  whenever  I  consider  it  my  duty;  and  I  challenge  investi- 
gation into  my  motives  or  my  action  in  this  case.  The  parties  who 
have  raised  the  cry  of  libel  and  blackmail  have  resorted  to  it  for 
the  purpose  of  diverting  the  public  mind  from  the  real  facts  in  the 
issue.  Instead  of  making  the  issue  against  the  plaintiff  in  this  suit, 
there  has  been  a  determined  effort  to  put  me  upon  trial,  and  I 
believe  that  I  have  stood  and  am  willing  to  stand  the  trial.  What- 
ever weaknesses  I  may  have,  cowardice  is  not  one  of  them  nor  dis- 
loyalty to  my  client  another.  I  could  not,  therefore,  allow  this 
court  to  misunderstand  my  position.  "Whatever  the  outside  world 
may  think,  can  matter  little  to  me — an  humble,  domestic  woman; 
but  what  my  friends  think,  and  those  with  whom  I  come  in  daily 
contact,  is  vital  both  to  my  happiness  and  my  pecuniary  interests. 
I  now  ask  your  honor  that  this  judgment,  to  which  my  client  is 
entitled,  be  granted." 


ELEVATED    RAILWAY    CASE. 

Tried  in  the  Superior  Court  of  N.  Y.,  Jan.,  1880. 

AEGUMENT  BY  BENJ.  F.  BUTLEB. 

The  American  bar  are  generally  familiar  with  the  pithy  and  pun- 
gent style,  the  singularly  successful  manner  and  wide  reputation 
of  Benj.  F.  Butler  as  an  orator.  His  art  is  known  as  well  on 
the  frontier  as  in  Congressional  discussions  and  among  the  factory 
hands  of  his  native  town  at  Lowell.  It  is  a  pleasure  to  hear  him 
at  his  best.  It  is  a  surprise  to  listen  to  his  pathos  and  incisive 
expressions  ;  but  his  element  of  strength  is  the  heroic — the  whirl- 
wind of  invective,  the  storm  of  passion,  that  brooks  no  defeat  ; 
that,  even  after  many  failures  to  be  governor  of  his  state,  only 
stimulates  new  energies  and  braver  endeavors.  Gen.  Butler  is  a 
bold  speaker.  He  is  a  brave  speaker  ;  a  strong,  logical  reasoner  ; 
his  words  full  of  force  are  propelled  with  power  and  vehemence. 
He  wins  his  cases  by  determined  labor,  by  toil,  and  a  name  for 
winning  them.  He  commands  his  juries;  he  demands  large  ver- 


ELEVATED  RAILWAY  CASE.  457 

diets;  he  inspires  men  by  his  magnetism.  He  ajks  and  receives 
decided  attention  and  excellent  fees.  Even  so  brief  an  extract  as 
the  following  will  give  a  glimpse  of  his  strong  and  original  style 
of  composition.  In  it  is  power,  pathos,  ingenuity  and  strong 
thought,  with  very  little  waste  of  words;  there  is  a  real  beauty  of 
simplicity. 

The  case  about  to  be  reported  is  where  an  injunction  was  sought 
by  Mr.  Caro  to  restrain  the  erection  of  an  elevated  railroad  past 
his  dwelling  on  Sixth  avenue.  New  York,  on  the  grounds  ably  set 
forth  in  the  argument. 

There  is  a  special  feature  of  this  address  worthy  of  note.  He 
does  not  "  crook  the  pliant  hinges  of  the  knee  "  even  to  judges. 
He  talks  of  his  client's  rights  ;  of  his  redress  j  of  his  demands  ; 
and  denounces  the  foolish,  fawning  course  of  counsel. 

The  passage  of  the  scenes  in  the  family  sick  chamber,  with  loved 
ones  listening  to  catch  the  child's  last  words  of  life,  the  father 
"  dealing  out  the  potion  drop  by  drop,"  is  as  graphic  as  the  scenes 
of  Macbeth.  The  pathos  is  touching. 

Gen.  Butler's  manner  is  somewhat  labored  and  heavy,  but  the 
anxious  interest  follows  him  for  hours,  as  the  ponderous  sentences 
follow  each  other  in  a  long  line  of  compact  and  almost  irresistible 
logic  to  a  conclusion,  reasonable  and  extremely  probable.  His 
gestures  are  largely  of  the  Websterian,  heavy  make,  and  all  the 
way  along  he  seems  to  be  reaching  out  after  an  undiscovered 
thought,  till  one  feels  like  saying  "  enough,  enough,"  long  before 
his  conclusion  is  reached. 

In  his  famous  phillipic  on  the  Indianapolis  editor,  in  1872, 
there  were  times  when  over  one  hundred  men,  out  of  the  ten 
thousand  audience,  stood  upon  their  seats,  with  flashing  eyes  and 
hands  striking  together,  with  a  hearty  ring,  shouting,  "Hit  him 
again  !"  "  Hit  him  again  ;  d — n  him,  hit  him  again  !"  "  Give  it 
to  him  ;  give  it  to  him  !"  Then,  with  that  wonderful  coolness,  he 
would  wave  his  broad  hand,  fanning  like  an  eagle's  wing,  and  hush 
the  vast  audience  to  silence. 

In  his  speech  to  two  thousand  fishermen  on  the  sea  coast,  all  in 
their  working  garb  and  intensely  interested,  he  grew  eloquent, 
witty  and  powerful,  but  no  murmur  of  applause  arose.  He  won- 
dered, but  went  on,  hit  after  hit,  and  no  response  to  the  end.  But 
when  he  closed,  men,  women  and  children  shouted  and  applauded 
in  the  wildest  manner.  Surly-looking  old  fishermen  would  nudge 
each  other,  and  repeat  his  jokes  with  a  relish.  It  was  not  their 
custom  to  applaud  while  speaking. 

In  the  railway  case  he  said: 


458  MODERN  JURY  TRIALS. 

MAY  rr  PLEASE  YOUR  HONORS  : 

At  the  close  of  the  lawyer-like,  close,  and  carefully  put  argu- 
ment of  iny  learned  associate  yesterday,  it  seemed  to  me  that  there 
was  nothing  left  for  me  to  say.  A  pure,  dry,  bare  question  of  law, 
interesting  only  from  the  importance  of  the  principles  involved, 
had  been  argued  upon  carefully  collated  authorities,  adapted  to  the 
various  aspects  of  the  case. 

After  such  a  reaper,  there  is  but  little  left  for  the  gleaner. 

But  the  course  which  the  discussion  took  afterwards  seems  to 
render  it  necessary  for  me  to  call  your  honors'  attention  to  certain 
matters  which  I  believe  to  be  fundamental,  and  which,  for  the  first 
time  in  the  course  of  forty  years'  practice,  have  I  heard  brought 
into  dispute,  and  also  to  remove  some  of  the  impedimenta  which 
have  been  thrown  in  the  way  of  our  receiving  justice  at  the  hands 
of  the  court,  by  the  opposing  counsel. 

Personally,  if  not  wholly,  a  stranger  to  your  honors,  I  cannot 
begin  my  argument  as  some  of  the  arguments  have  been  begun — 
by  a  eulogy  upon  the  court.  I  never  pay  compliments  where  none 
are  needed.  I  am  certain,  from  the  course  of  this  investigation, 
that  I  shall  receive  a  patient,  attentive  and  careful  hearing,  and 
that  is  all  that  my  client  can  ask  in  the  debate  of  the  cause  ;  and  I 
feel,  notwithstanding  the  appeals  that  have  been  made  to  your 
honors,  that,  after  the  hearing,  my  client's  cause  will  receive  at 
your  hands  careful,  patient,  righteous  investigation  and  judgment. 
******** 

If  that  law  provides,  as  we  think  it  does  do,  in  one  or  other  of 
two  forms  of  construction,  that  the  respondent  railroad  shall  pay 
for  damages  which  they  do  by  injury  to  citizens  through  a  com- 
mission or  otherwise,  then  the  law  is  a  constitutional  one.  If  the 
statute  does  not  so  provide  in  some  form,  then  the  current  of 
authority  is  so  universal  and  so  strong  that  there  is  left  no  ripple 
to  show  on  the  surface  even,  that  such  a  law  can  be  constitutional. 

We  believe  it  to  be  constitutional.  Every  intendment  should  be 
mnde  in  favor  of  the  law.  It  should  not  be  so  frittered,  or,  in  the 
nervous  language  of  Gibson,  "filed"  away  as  to  render  it  uncon- 
stitutional. Therefore  we  admit  that  there  is  a  constitutional  law 
authorizing  the  defendants  to  build  an  elevated  railroad  upon  the 
street  in  front  of  our  dwelling,  and  that  elevated  road  is  to  be 
built  according  to  their  will  and  pleasure  as  to  manner.  In  that, 
the  law  provides  no  restriction  whatever.  It  may  be  built  on 
posts;  it  may  be  built  on  a  solid  structure  to  support  its  rails  along 
the  street,  one  foot  high,  ten  feet  high,  or  one  hundred  feet  high. 


ELEVATED  RAILWAY  CASE.  459 

Therefore,  there  being  no  limitation  to  the  will  of  the  builders  of 
the  road,  it  seems  to  me  that  the  law  has  left  the  question  of 
reparation  for  injuries  done  to  the  citizen  by  the  structure  and 
operation  of  the  road  to  be  ascertained  from  the  manner,  as  the 
extent  of  them  must  be  determined  by  the  manner  of  buildin^ 

*  O  * 

to  be  adjudicated  by  the  proper  judicial  tribunals,  which  is  one  of 
the  ways  in  which  the  law  may  provide  that  the  constitutional 
protection  of  the  rights  of  the  citizen  that  private  property  shall 
not  be  taken  for  a  public  use,  or  appropriated  without  reasonable 
compensation,  may  be  enforced.  *  *  *  * 

"  If  the  land  is  rendered  less  valuable  because  it  is  more  exposed 
to  fire;  or  if  access  to  it  is  rendered  more  difficult;  or  if  the  use 
of  the  remainder  is  more  inconvenient  by  reason  of  the  railroad ; 
or  if  its  value  is  depreciated  by  the  noise,  smoke,  or  increased 
dangers  caused  by  the  use  of  the  railroad  —  all  these  are  to  be 
included  in  the  estimate  of  damages.  Not  that  witnesses  are  to 
be  called  upon  to  estimate  damages  for  each  or  any  of  them ;  for 
though  they  enter  into  the  estimates,  the  question  is,  what  is  the 
market  value  of  the  whole  land  without  the  railroad,  and  what  is 
the  market  value  of  the  remainder  of  the  piece  with  the  railroad? 
Or,  in  other  words,  what  is  the  value  of  the  piece  which  is  taken, 
and  how  much  is  the  residue  depreciated  in  its  market  value  by 
the  separation  and  the  construction  of  the  railroad?  which  two 
sums  added  together  is  the  amount  of  compensation  to  which  the 
appellant  in  this  case  is  entitled.  I  have  no  doubt  that  the 
increased  risk  by  fire,  if  any,  is  properly  included  in  this  estimate." 

So,  may  it  please  your  honors,  the  argument  put  with  so  much 
force,  vigor,  power,  and  earnestness,  as  to  whether  Mr.  Caro  is  not 
obliged  to  smell  the  smoke  and  hear  the  noises  of  running  trains, 
had  all  been  decided  years  ago  under  the  able  and  skillful  guid- 
ance of  my  learned  friend  who  made  respondents'  argument  yes- 
terday, and  the  same  principles  have  lately  been  reaffirmed. 

We  come  to  another  matter,  which  I  approach  with  great  diffi- 
dence and  reluctance: 

I  have  been,  all  my  professional  life  of  forty  years,  except  when 
I  have  been  carried  away  in  misspent  time  otherwheres,  before 
courts  of  justice  advocating,  in  my  poor  way,  the  rights  of  my 
clients.  In  the  supreme  court  of  the  state,  where  I  have  most 
practiced,  its  seal  is  emblazoned  over  the  seat  of  justice  for  an 
escutcheon,  declaring  the  principles  on  which  the  court  acts, 
always  standing  out  from  the  wall  before  the  advocate  for  hia 


460  MODERN  JURY  TRIALS. 

guidance,  who  ought  to  watch  it  as  the  mariner  does  his  guiding 
star  of  the  pole.  *  *  *  * 

Who  and  what  are  the  judges  of  courts  ?  They  are  the  repre- 
sentatives of  the  law;  the  representatives,  so  far  as  human,  erring 
nature  can  be,  of  eternal  and  impartial  right. 

Such  has  been  my  teaching ;  may  it  please  your  honors,  such, 
I  believe,  the  teaching  of  the  books  of  law;  such  the  lesson  of 
the  garnered  wisdom  of  the  common  law  for  a  thousand  years. 
To  put  the  judges  as  far  as  possible  beyond  all  motive,  in  the 
mother  country,  from  which  we  draw  our  laws,  they  were  made 
independent  of  kings,  to  hold  their  places  for  life.  It  was  their 
province,  jus  dicere  non  jus  dare.  To  declare  what  is  the  law 
between  party  and  party,  and  not  to  make  the  law,  which  wa» 
the  duty  of  the  king,  parliament,  and  people. 

Imagine  my  surprise — I  will  use  no  words  of  characterization, 
for  they  fail  to  meet  the  occasion — when  I  heard  your  honors 
appealed  to,  as  the  "representatives  of  the  people  of  the  city  of 
New  York,*'  to  decide  this  case  in  their  interests.  Imagine  what 
I,  a  stranger  to  you,  felt  when  I  heard  a  venerable  lawyer,  with 
my  client's  great  interests  hanging  trembling  in  the  balance  of 
justice,  appeal  to  you,  not  to  give  him  justice,  but  to  deny  it  to 
him.  You  were  told  to  send  him  to  some  other  court,  or,  as  the 
phrase  was,  "if  this  [i.  e.f  judgment  given  in  his  favor]  must  be 
done,  let  it  be  done  by  an  alien  hand,"  and  this  hand  was  pointed 
out  by  the  remark  that  we  had  threatened  to  go  to  "  some  alien 
tribunal."  That  could  only  refer  to  the  fact  that  we  put  in  our 
complaint  that  this  injury  and  wrong  done  us  was  in  contraven- 
tion of  the  constitution  of  this  state  and  the  United  States. 

After  numerous  citations  of  authorities,  with  elaborate  comments 
upon  each,  he  continued: 

And  therefore  we  said  that  we  invoked,  and  we  mean  to  invoke, 
the  protection  of  this  provision,  and  that  is  why  it  is  in  our  com- 
plaint; and  also  for  one  of  the  very  good  reasons  for  so  doing,  that 
if  anybody  shall  say  that  the  word  "  taken  "  has  so  technical  and 
"filed  away"  meaning  as  not  to  cover  this  species  of  our  property, 
then  we  invoke  the  constitution  of  the  United  States  that  no  state 
shall  deprive  us  of  any  property  without  due  process  of  law,  we 
being  citizens  of  the  United  States. 

May  it  please  your  honors — You  have  seen  the  ideal  of  Justice 
as  her  figure  has  been  handed  down  to  us  in  the  dreams  of  the 
sculptors  and  philosophers  of  the  olden  time.  She  holds  her  evenly- 
balanced  scales,  and  her  eyes  aiv  lianclaged.  What  for?  That  she 


ELEVATED  RAILWAY  CASE.  461 

may  see  none  of  the  consequences  of  declaring  the  right,  the  truth 
of  the  cause;  and  the  legend  which  she  bears  upon  her  girdle  is 
flat  justitia  mat  ccelum,  "  Let  justice  be  done  though  the  heavens 
fall."  And  yet  the  eyes  of  Justice,  looking  from  the  bench  here, 
were  invoked  to  look  outside  of  the  record — to  look  at  the  possible 
consequences  of  deciding  right !  For  what?  To  sway  the  judg- 
ment of  the  court  in  their  administration  of  the  law  against  the 
right  of  the  poor  and  humble,  in  favor  of  the  rich  and  powerful. 
God  help  us,  when  it  comes  that  this  may  be  argued  in  a  court  of 
justice  in  the  most  enlightened  state  in  this  Union,  as  well  as  the 
most  powerful ! 

Again :  Let  me  illustrate  the  effect  of  such  appeals  upon  men's 
minds  to  give  you  an  idea  of  how  they  bring  contempt  on  the 
administration  of  the  law.  Your  honors  will  not  misunderstand 
anything  I  say,  for  if  I  thought  such  appeals  could  have  any  effect 
upon  your  honors  I  would  fold  up  my  papers  and  go  away.  To 
show,  I  say,  what  laymen  think,  my  client  came  to  me  yesterday 
and  said,  "  What  do  you  think  of  my  case  ?  "  I  said  if  there  were 
only  five  thousand  dollars  involved  I  would  not  argue  it,  it  seems 
so  plain.  But  as  it  is,  God  knows  we  must  argue  it. 

My  duty  to  the  court  and  myself  made  me  stop  there.  If  your 
honors  can  be  influenced  by  such  observations  in  your  decision  of 
this  cause,  of  course  you  will  write  them  out  in  your  opinion,  so 
that  all  the  world  may  see  the  basis  of  judgment.  If  you  could  be 
influenced  by  such  argument  you  should  put  it  on  record,  so  that 
we  could  understand  that  when  the  growth  of  the  city  of  New 
York  is  in  question,  nobody  has  any  rights  of  property  in  it.  If  it 
is  not  proper  that  such  things  should  be  written  in  a  decision,  the 
idea  of  doing  which  seems  to  excite  a  smile  on  every  countenance, 
ought  any  argument  to  be  addressed  to  the  court  that  is  not  proper 
and  right  to  be  written  in  the  decision,  or  opinion,  in  the  cause,  to 
influence  which  it  is  made? 

I  pass  from  this  somewhat  painful  part  of  the  argument. 

True,  may  it  please  your  honors,  the  principles  which  we  present 
here  for  our  protection  are  as  old  as  eternal  justice.  To  borrow  an 
illustration  from  a  profession  in  which  for  awhile  I  misspent  my 
time,  and  with  which  I  was  playfully  and  good-naturedly  taunted 
yesterday,  the  profession  of  arms — it  is  true  our  arms  are  not  new, 
bright  or  shining — the  shield  we  interpose  between  our  client  and 
great  wrong  is  war-worn  and  dented  all  over  with  many  a  thrust 
and  giant  blow  from  the  tyrant,  aimed  at  the  People  and  their 
rights;  the  sword  we  draw  in  our  defense  is  like  Excalibar  of  King 
Arthur,  hacked  all  along  its  edge  in  warding  off  many  a  stal- 


462  MODERN  JURY  TRIALS. 

wart  blow  aimed  by  the  Demon  wrong;  bat  our  buckler  is  still 
strong  and  powerful,  our  sword  trenchant,  and  sufficient  to  defend 
and  save  the  humblest  and  lowliest  from  the  deadliest  onslaught 
of  wickedness  and  oppression,  however  combined  and  confederated, 
even  under  the  sacred  name  of  law.  Nay,  more;  our  great  shield 
of  constitutional  rights  has  been,  by  the  fourteenth  amendment, 
lately  brightened  and  polished  so  that  it  blazes  before  the  face  of 
injustice  as  did  the  shield  of  Richard  Coeur  de  Lion  when  he  flashed 
it  in  the  face  of  the  Saracen.  It  is  the  eternal  principle,  new  and 
old,  old  and  new,  and  I  speak  with  reverence  when  I  say  it  might 
be  said  of  it,  "  Before  Adam  was,  I  am,"  that  no  citizen's  property, 
to  the  least  pin's  worth,  shall  be  taken  from  him  for  any  public  use 
or  private  purpose  without  due  compensation.  For  private  pur- 
poses not  at  all.  For  public  purposes  only  upon  compensation. 
******** 

Now  I  submit  that  this  was  a  base  or  qualified  fee,  because  the 
only  use  that  New  York  could  put  the  land  to  was  to  keep  it  open 
as  a  street  forever,  as  other  streets  were;  and  it  is  not  in  dispute 
that  there  was  neither  horse,  steam  elevated  or  depressed  railroads 
5n  the  streets  of  New  York  at  that  time.  The  city  received  a  fee 
in  the  sale  to  keep  upon  the  surface  a  street  there.  What  did  thic 
bargain  and  sale  leave  in  Mr.  Bertine  belonging  to  the  remainder 
of  his  land?  What  did  he  give  up  the  adjoining  for?  To  have  a 
street  in  all  that  the  name  implies.  What  is  that  ?  A  means  of 
access  for  himself  and  others  to  his  dwelling  on  that  line,  to  be 
wrought  for  travel  by  the  city.  Lighting  at  night,  guarding  by 
day  and  night.  So  much,  clearly,  he  was  to  have  for  what  he  gave 
up.  What  else?  What  everybody  has  on  a  street — light  and  air 
to  come  in  over  that  street  to  his  house  or  to  his  land.  In  other 
words,  the  city  took  the  street  in  fee,  subject  to  easements  to  go 
over  the  soil;  second,  for  the  free  light  of  heaven  to  come  over  the 
street;  and,  third,  for  the  pure  air  to  come  into  his  house;  and  he 
and  those  claiming  under  him  enjoyed  those  rights  unrestrained  and 
unmolested  from  1838  to  1878,  more  than  time  enough  to  prescribe 
under  the  common  law  for  the  right,  as  against  the  fee  in  an  adja- 
cent lot.  My  brother  fritters  all  these  easements  away  to  the  right 
of  access  upon  the  soil  only.  He  says  that  is  the  only  thing  which 
a  "street"  means. 

Then  the  whole  of  Broadway  can  be  roofed  over  tight. 
******** 

That  is,  we  have  a  right  to  the  possibility  of  the  enjoyment  of 
our  eyes  in  the  light  of  heaven,  in  our  own  house;  to  the  enjoyment 
of  our  ears  in  our  own  house;  a  right  to  the  possibility  of  the  enjoy- 


ELEVATED  RAILWAY  CASE.  463 

ment  of  our  own  homes  free  of  insults.  Why  do  you  and  I  want 
a  dwelling?  To  live  in  by  day  and  sleep  quietly  in  by  night, 
undisturbed;  and  still  more,  that  our  children,  the  wife  and  mother, 
may  live  there  in  undisturbed  quiet  at  all  times. 

But  now  so  it  is  in  this  dwelling — when  the  heavy  hand  of  sick- 
ness has  stricken  the  loved  one,  and  she  lies  wearily  upon,  it  may 
be,  the  bed  of  death,  and  with  prudent  care  the  window  is  opened 
to  let  in  the  pure  air  to  aid  the  gasping  breath;  when  with  careful 
thought  the  rays  of  sunlight  are  so  adjusted  as  not  to  offend  the 
sleepless  eye;  when  all  is  hushed  in  calm  quiet,  so  as  to  soothe  the 
throbbing  brain,  maddened  by  the  tension  of  the  overstrained  and 
overwrought  nerves;  when  the  weary  watcher  sits  tremblingly  fear- 
ing less  the  sobbing  call  of  "  mother,"  by  the  sweet  voice  of  child- 
hood, may  loose  the  "  golden  cord "  which  binds  the  sufferer  to 
earth;  when,  perchance  with  hand  made  firm  by  loving  duty,  the 
father  measures  out  the  potent  medicine,  drop  by  drop,  which  he 
fondly  hopes  may  save  his  beloved  to  him  and  hers — then  the  over- 
crowded, long-extended  train  of  cars  is  driven  thundering  by,  with 
the  stench  of  suffocating  gas;  the  flashing  light  of  the  baleful 
engine-fire  closes  with  its  glare  the  glazing  eye;  the  uproar  shocks 
into  palsy  the  quivering  nerves;  the  chamber  of  death  is  filled  with 
clouds  of  smoke  and  sulphurous  gases,  choking  the  parched  throat, 
closing  the  quivering  nostrils  which  can  no  more  breathe  the  breath 
of  life  forever;  but  when  the  darkening  shadow  of  the  train  has 
passed,  the  returning  daylight  comes  back  into  the  murky,  smoke 
closed  room  to  light  up  a  pallid  face,  now  clay,  mourned  over 
by  bereaved  husband  and  orphaned  children  as  of  one  untimely 
taken. 

This  is  no  overdrawn  picture  of  what  does  now  happen,  but. 
never  can  happen  in  a  street  kept  "  open  for  public  use  as  tne 
streets  of  New  York  were,  and  of  right  ought  to  be,  kept  open, 
and  appropriate,"  where  kind  neighbors,  from  block  to  block, 
would  cease  playing  even  on  the  piano  in  pity  for  a  sick  sufferer. 
******** 

Surely  this  is  a  new  taking  and  a  new  use  of  the  street. 

Yet  here  in  this  temple  of  justice  I  am  told  that  we  must  bear 
all  this.  That  my  client  must  look  forward  to  such  a  death-bed 
5or  himself  and  his  loved  ones,  and  has  no  redress  by  the  laws  of 
the  land.  If  that  can  be  so,  let  me  reside  in  some  country  where 
the  people  can  temper  despotism  with  the  dagger — where  the  men 
who  are  protecting  the  rights  of  the  citizen  are  beginning  to  use 
that  method  of  stopping  oppression.  It  would  be  more  tolerable 
under  a  despotism,  for  that  is  one  against  the  many.  But  here  in 


464  MODERN  JURY  TRIALS. 

New  York  the  might,  with  the  power,  the  wealth,  the  many  are 
against  the  one,  from  which  there  can  be  no  redress  if  the  passions 
and  motives  which  were  invoked  against  Mr.  Caro,  who  sits  here, 
an  old  man,  are  to  prevail  as  the  rule  of  law.  *  *  .*  * 

What  does  he  say  almost  in  the  very  next  sentence?  "See  the 
great  net-work  of  railroads  running  through  this  land  to  every  vil- 
lage, bringing  millions  upon  millions  of  property  and  thousands 
upon  thousands  of  men  into  the  city  daily.  See  all  that  has  been 
done  by  this  great  system  of  railroads,  and  will  you  stop  this  last 
great  public  improvement  in  the  city  ? "  Why,  my  friend,  were 
not  all  these  great  systems  of  railroads  radiating  from  this  city 
constructed  under  exactly  the  principles  of  compensating  owners  of 
private  property  injured,  we  set  up  here  ?  Make  your  road  where 
you  please  and  how  you  please,  but  pay  for  the  injuries  you  cause 
in  so  doing.  And  has  not  every  one  of  the  surface  railroads  been 
made  exactly  under  those  provisions  ?  Has  the  application  of  this 
principle  stopped  this  great  system  of  railroads?  Not  at  all. 
Even  brother  Porter,  when  he  interposed  for  the  church,  didn't 
stop  the  railroad.  They  paid  the  damages,  and  went  on  just  as 
though  nothing  had  happened. 

********** 

The  legislature  says  to  them,  build  your  road ;  the  state  sends 
you  out  with  this  valuable  charter,  but  upon  it  is  written  in  fact 
the  old  time  maxim  of  the  common  law,  Sic  utere  tuo  ut  alienum 
non  loedas.  So  use  your  own  as  not  to  injure  another.  Theirs  is 
the  same  title  only  by  which  we  hold  all  our  property  everywhere 
under  all  circumstances. 

The  amount  of  the  injury,  as  is  alleged,  is  "  enormous  ; "  but  it 
is  of  no  avail  to  discuss  the  question  of  damages.  Nominal  dam- 
ages only  will  answer  their  demurrer. 

May  it  please  your  honors,  we  have  brought  our  client  into  this 
forum,  one  appointed  by  the  laws  of  the  state  in  which  he  lives, 
respectable  in  its  history — nay,  more,  known  for  its  exact  justice — 
when  in  the  hands  of  those  who  have  respected  the  places  they 
occupied  ;  and  we  bring  him  here  shielded  by  the  constitution, 
guarded  by  the  sword  of  the  law,  surrounded  by  every  right  that 
is  known  to  justice.  We  show  him  deprived  of  his  home,  that  home 
which,  if  it  were  a  hovel  only,  the  common  law  says  the  king 
might  not  enter,  although  the  winds  and  rains  of  heaven  might 
pour  through  it.  That  home  has  been  invaded  by  pli ysical  objects, 
stenches,  impure  air,  and  sounds,  thrown  into  it  by  the  respondents 
— the  same  force  that  breaks  the  glass  out  of  your  windows  when 
the  cannon  is  fired  beneath  them. 


CALLAHAN-TORMIE  CASE.  465 

We  ask  to  his  case  so  presented  all  of  the  investigation,  icumen, 
and  examination  of  the  law  that  its  great  importance  calls  for,  and 
if  the  court  find  he  has  been  wronged,  we  DEMAND  judgment  of 
remedy  at  your  hands,  regardless  of  the  call  of  my  brother  upon 
you  that  the  court  turn  him  over  to  another  tribunal,  because  it  is 
an  unpleasant  duty  to  "give  judgment  against  neighbors  and 
friends." 


THE  CALLAHAN-TORMIE   CASE. 

Fried  at  Wooster,  Ohio,  March,  1880. 

The  interest  and  excitement  of  a  city  murder  trial  fades  and 
diminishes  to  a  common-place  occurrence  when  compared  to  a  great 
trial  in  a  country  village.  The  farmers  leave  their  fields,  mechan- 
ics their  shops,  and  the  entire  community  is  absorbed  in  the  one 
idea  of  the  tragedy. 

The  first  case  of  the  kind  that  ever  occurred  at  Wayne  county, 
Ohio,  in  a  staid  and  substantial  farming  region,  where  morals  and 
prosperity  have  gone  hand  in  hand  for  half  a  century,  may  well 
awaken  an  intensely  exciting  interest;  and  while  the  real  material 
for  well-composed  paragraphs  in  the  eloquent  arguments  are  want- 
ing, there  is  enough  in  the  graphic  story  of  the  Wooster  press  and 
notes  of  counsel,  to  give  a  general  idea  of  the  event — as  much  as 
can  be  given  without  the  speeches  in  full  and  the  details  of  the 
evidence  and  trial. 

But  a  single  element  of  interest  was  wanting  to  make  this  one 
of  the  most  celebrated  cases  in  Ohio.  There  was  no  mystery  in  the 
killing !  It  was  a  running  fight  in  a  public  fair-ground.  This  left 
the  contest  at  the  trial  as  to  who  provoked  the  murder. 

A  full  illustration  of  Callahan  and  Tormie,  the  scaffold,  the 
coffin,  and  the  hanging,  with  the  details  of  the  conviction  and  exe- 
cution was  extensively  circulated  in  the  county  and  surrounding 
country  and  became  a  topic  of  general  interest. 

To  those  that  have  never  marked  the  difference  between  direcf. 
and  circumstantial  evidence,  this  will  remain  an  ideal  village  mur- 
der trial.  But  to  the  country  at  large  the  deepest  interest  always 
follows  the  greatest  mystery.  Men  become  most  absorbed  in  that 
30 


466  MODERN  JURY  TRIALS. 

which  no  one  can  fathom — a  series  of  facts  just  clear  enough  to 
excite  the  mind,  and  lacking  enough  to  convince  the  judgment  just 
how  the  matter  happened,  is  the  real  foundation  for  eloquence. 

The  prisoner  was  brought  into  the  bar  by  Sheriff  Coulter,  and 
was  accompanied  by  his  father  and  mother,  who  are  respectable 
Irish  people,  residing  a  short  distance  east  of  Wooster.  Five 
months'  incarceration  in  jail  had  much  improved  his  personal 
appearance,  he  being  a  good-looking,  intelligent  young  man  of 
about  twenty-one  years,  neatly  dressed,  with  no  indications  of 
viciousness  in  his  countenance. 

While  there  was  no  public  disturbance,  Wooster  never  knew  such 
an  exciting  time  as  during  the  progress  of  the  trial.  Wrought-up 
crowds  for  eleven  days  packed  the  court  room  to  almost  suffoca- 
tion, filling  all  possible  space  to  the  number  of  two  thousand  men 
and  women,  some,  in  their  anxiety  to  witness  the  proceedings,  even 
bringing  their  little  children  and  crying  infants.  This  was 
especially  the  case  during  the  arguments  of  the  counsel,  more  par- 
ticularly those  of  Lynch  for  the  defense  and  McSweeney  for  the 
prosecution,  and  during  the  charge  of  the  court. 

The  representation  of  women  of  all  classes  was  remarkably  large 
the  last  few  days  of  the  trial.  Long  before  the  hour  to  open,  they, 
with  the  men,  almost  ran  along  the  pavements  to  get  to  the  court 
house,  excitably  besieging  the  doors  for  admittance,  and  then  in  a 
breathless  way  rushed  up  stairs  to  secure  seats.  When  the  seating 
capacity  was  exhausted,  the  later  arrivals  kept  crowding  on,  male 
and  female  squeezing  into  any  possible  space,  filling  the  bar,  the 
steps  of  the  judge's  stand,  and  even  to  places  on  the  bench  beside 
his  honor  —  everywhere  they  could  stand  or  sit,  even  flat  on  the 
floor — giving  no  room  scarcely  for  the  court,  counsel  or  jury  to 
move.  Such  a  scene  must  be  witnessed,  as  it  is  indescribable. 

Mrs.  Tormie  succumbed  to  her  feelings  during  the  testimony  of 
the  surgeon  explaining  the  wounds  and  last  moments  of  her  slain 
husband.  Mrs.  Callahan,  the  mother  of  the  prisoner,  also  gave 
way  on  one  occasion.  Frequently  many  men  and  women  were 
bathed  in  tears,  particularly  during  the  pathetic  recitals  by  coun- 
sel. As  the  natural  result  of  so  much  nervous  excitement,  the 
oppressive  air,  etc.,  several  women,  at  different  times,  fainted  and 
had  to  be  carried  out.  One  juryman,  who  had  been  ailing,  also 
nearly  fainted  away,  and  had  to  be  removed  and  a  physician  called, 
necessitating  the  adjournment  of  court  for  a  time.  There  were 
many  scenes  and  incidents  of  various  kinds,  well  illustrating  the 
inside  of  human  nature. 


CALLAHAN-TORMIE  CASE.  467 

The  presiding  judge,  Hon.  C.  C.  Parsons,  was  kind,  tender,  and 
mingled  justice  with  mercy  throughout  the  long  and  exciting  case, 
the  story  of  which  appears  in  the  arguments. 

ATTORNEYS. 

C.  A.  Rieder,  prosecuting  attorney,  and  Hon.  John  McSweeney 
appeared  for  the  state  ;  and  William  A.  Lynch,  of  Canton,  and 
John  McSweeney,  Jr.,  for  the  prisoner. 

Hon.  John  McSweeney,  of  Wooster,  for  a  quarter  of  a  century 
has  stood  as  a  bright  light  in  the  great  galaxy  of  Ohio's  distin- 
guished advocates,  and  a  more  celebrated  criminal  lawyer  is  not 
known  in  the  state.  A  man  nearly  sixty,  strong,  large,  of  power- 
ful voice  and  tragic  delivery  ;  an  extempore  speaker,  with  the  hot, 
impetuous  eloquence  peculiar  to  his  nativity  ;  he  impresses  his 
juries  with  the  gravity  of  the  case,  the  magnitude  of  the  issue, 
and  then  plays  upon  their  passions  like  a  master  on  an  instrument. 
He  has  that  peculiar  oratory  suited  to  a  country  jury,  that  capti- 
vates, enthuses,  convinces  and  wins  his  cases.  He  is  received  in 
Ohio  suits  as  a  star  actor  in  a  play  like  Virginius.  Although  he 
often  argues  at  great  length,  and  grows  bitter,  vindictive  and  sar- 
castic, on  this  occasion  he  was  tender  and  considerate,  and  all  the 
more  effective. 

Wm.  A.  Lynch,  Esq.,  on  opening  his  argument,  briefly  expressed 
his  profound  gratitude  to  the  court  for  the  fairness  and  judicial 
impartiality  accorded  him  and  his  associate  counsel  in  the  conduct 
of  this  trial,  and  the  uniform  courtesy  and  kind  treatment  received 
at  the  hands  of  the  opposing  counsel.  In  first  addressing  the  jury 
he  spoke  in  befitting  terms,  that  he  felt  the  solemn  and  immense 
responsibility  imposed  upon  him  and  his  associate  counsel,  when  he 
considered  that  the  life,  liberty  and  future  hopes  of  the  young 
prisoner  at  the  bar  was  committed  to  such  weak  hands.  When  he 
considered  the  anguish  of  heart  of  this  poor  mother  and  this  kind 
old  father  and  affectionate  sisters,  he  said  he  was  appalled  at  the 
situation.  But  he  said  he  was  not  without  hope  ;  that  there  was 
a  just  foundation  for  it,  and  that  all  he  asked  of  the  jury  was  their 
careful  consideration  of  all  the  testimony  in  the  case,  and  that 
they  should  ingraft  upon  their  hearts  the  precepts  of  the  law — the 
law  of  the  land,  as  it  would  be  expounded  and  given  to  them  by 
the  court,  and  after  all  this,  he  felt  that  he  could  safely  entrust  the 
fate  of  this  young  man — his  life,  his  liberty,  his  all — to  the  sacred 
keeping  of  this  honest  and  impartial  jury.  Mr.  Lynch  then  pro- 
ceeded with  his  argument  of  some  eight  hours  in  length,  and  closed 


468  MODERN  JURY  TRIALS. 

with  a  fine  peroration,  in  which  he  embraced  the  opportunity  of 
forewarning  the  jury  of  the  terrible  power,  and  irresistible,  persua- 
sive eloquence  of  the  learned  counsel  who  would  follow  him  and 
close  the  case.  He  said  that  in  many  contests  in  which  he  was 
associated  with  him  or  pitted  against  him  in  the  legal  forum,  he 
knew  the  force  of  his  logic,  his  thrilling  comparisons  and  illustra- 
tions, his  captivating  manner,  his  terrible  invective,  his  fierce 
denunciation,  his  stirring,  sympathetic  appeals,  his  mastery,  by  the 
power  of  his  eloquence,  over  the  hearts,  minds  and  feelings  of  his 
audience,  and  how  he  would  sometimes  even  warp  his  own  judg- 
ment. He  asked  the  jury  to  fortify  themselves  against  such  almost 
irresistible  influence  and  power. 

ABGTTMENT    OF   MB.  McSWEENEY. 

He  commenced  the  closing  argument  for  the  people  at  four  o'clock, 
in  that  slow,  measured,  and  impressive  manner  that  hushed  the 
vast  audience  to  a  silence  almost  painful  from  the  beginning  to  the 
close  of  a  long  and  eloquent  address. 

The  speaker  opened  by  saying  : 

Curran,  the  Irish  advocate,  was  on  a  special  occasion  brought 
down  to  the  county  of  York  to  assist  in  the  prosecution  of  Sir 
Henry  Hayes,  for  a  capital  offense,  and,  in  opening  his  address  to 
the  court  and  jury,  said  : 

"I  cannot  forget  upon  what  very  different  ground  from  that  of 
the  learned  counsel  for  the  prisoner  I  find  myself  placed.  It  is  the 
privilege,  it  is  the  obligation  of  those  who  have  to  defend  a  client 
on  a  trial  for  his  life,  to  exert  every  force,  and  to  call  forth  every 
resource  that  zeal  and  genius  and  sagacity  can  suggest — it  is  an 
indulgence  in  favor  of  life — it  has  the  sanction  of  usage,  it  has  the 
permission  of  humanity,  and  the  man  who  should  linger  one  step 
behind  the  most  advanced  limit  of  that  privilege  and  should  fail 
to  exercise  every  talent  that  heaven  had  given  him  in  that  defense, 
would  be  guilty  of  a  mean  desertion  of  his  duty  and  an  abandon- 
ment of  his  client. 

"Far  different  is  the  situation  of  him  who  is  counsel  for  the 
crown.  Cautiously  should  he  use  all  his  privileges — scrupulously 
should  he  keep  within  the  duties  of  accusation;  his  task  is  to  fairly 
lay  the  nature  of  the  case  before  the  court  and  jury.  Should  he 
endeavor  to  gain  a  verdict  otherwise  than  by  evidence,  he  Were 
unworthy  of  speaking  in  a  court  of  justice.  If  I  heard  a  counsel 
for  the  crown  state  anything  that  I  did  not  think  founded  in  law, 
I  should  say  to  myself,  God  grant  that  the  man  who  has  acted  thus 


CALLAHAN-TORMIE  CASE.  469 

may  be  an  ignorant  man,  because  his  ignorance  can  be  his  only 
justification.  It  shall  be  ray  endeavor  to  so  lay  the  matters  of  fact 
and  law  before  you  as  shall  enable  you  to  clearly  comprehend 
them,  and  finally,  by  your  verdict,  to  do  complete  justice  between 
the  prisoner  and  the  public." 

And,  standing  in  my  place  to-day,  a  position  entirely  unsought, 
but  filling  an  appointment  made  by  this  honored  court,  that,  as  a 
member  of  the  bar  and  as  an  order-loving  citizen,  I  dare  not 
decline.  I  further  declare  that  the  lawyer  who  should  attempt  to 
procure  the  conviction  of  a  prisoner  of  a  high  crime  for  the  mere 
gratification  of  any  desire  for  personal  triumph  or  professional 
glory,  would  thereby  prove  himself  unfit  for  the  position  of  a 
public  prosecutor,  and  in  such  hands  the  trial  of  an  alleged 
offender  would  degenerate  to  a  mere  persecution.  And  an  attorney 
impelled  by  such  unworthy  motives,  even  if  successful,  would 
gather  only  withered  leaves  and  faded  flowers  for  his  victor- 
wreath,  and  would  not  have  moistened  his  lips  with  one  drop  from 
that  perennial  fountain,  whose  living  waters  can  alone  quench  the 
thirst  of  an  immortal  for  true  glory  and  lasting  renown.  Nor 
would  he  by  an  ill-starred  triumph,  obtained  by  motives  such  as  I 
have  indicated,  ascend  one  step  of  the  rugged  side  of  that  mount 
on  whose  bright  summit  fame's  proud  temple  shines  afar.  I  will 
none  of  such  triumphs,  nor  would  I  bring  down  on  myself  the 
frowns  and  just  censure  of  a  chivalric  profession.  I  maj  call 
things  by  their  right  names;  I  may  strike  hard  blows,  but  they 
shall  be  fair  ones,  and  after  a  full  and  candid  discussion  of  this 
case,  involving,  as  it  does,  the  liberty  and  life  of  the  defendant  at 
the  bar,  I  shall  ask  you  to  render  such  a  verdict  as  will  not  in  the 
great  hereafter  be  quoted  as  weakening  any  of  the  safeguards  of 
society,  nor  as  giving  encouragement  to  the  infraction  of  that 
great  command — "  Thou  shalt  do  no  murder." 

"  Having  thus  crossed  the  threshold,  Mr.  McSweeney  then  pro- 
ceeded to  deliver  what  may  be  justly  termed,  like  in  speaking  of 
Webster's  speeches,  a  great  speech,  worthy  of  his  distinguished 
abilities,  and  perhaps  not  excelled  by  any  of  his  former  efforts  in 
Wooster.  It  is  certainly  true,  as  Mr.  Lynch  intimated,  that  he 
had  to  contend  with  the  genius,  the  renown,  and  the  popularity  of 
a  most  eloquent  and  powerful  adversary.  He  seems  to  be  in  the 
meridian  of  his  intellectual  faculties  and  reputation.  In  the  course 
of  his  speech  he  indulged  in  those  lofty  and  passionate  flights  of 
eloquence  in  which  he  excels,  and  in  that  terrific  declamation  which 
was  set  off  by  looks,  tones,  gestures  and  actions  worthy  of  the 
great  Garrick.  In  his  whole  argument 


470  MODERN  JURY  TRIALS. 

He  waved  his  scepter  o'er  his  kind, 
By  nature's  first  great  charter — mind. 

"When  he  discussed  law  he  was  profound  and  learned.  When  he 
dilated  upon  facts  he  was  fair  and  logical,  deducing  his  conclu- 
sions with  unerring  precision  and  crowning  effect,  and  always 
showing  the  versatility  of  his  mind. 

"The  first  portion  of  Mr.  McSweeney's  speech  was  grand  in  the 
extreme.  Never  was  such  a  scene  witnessed  in  our  court.  It  was 
heart-rending,  and  yet  frightfully  appalling,  especially  when  the 
speaker  gave  vent  to  that  thrilling  burst  of  eloquence  in  describing 
and  almost  re-enacting  the  death-scene  on  the  Fair  grounds,  and 
when  he  said,  "  Make  room  for  poor  Tormie  !  Make  way  for  dead 
Tormie  ! — room  for  shrouded  Tormie  !"  he  sent  terror  into  the 
heart  of  the  accused,  and  aroused  the  utmost  pity  for  the  dead.  It 
seemed  as  though 

He  would  drown  the  stage  with  tears, 
And  cleave  the  general  ear  with  horrid  speech, 
Make  mad  the  guilty  and  appal  the  free, 
Confound  the  ignorant,  and  amaze  indeed 
The  very  faculties  of  eyes  and  ears, 

so  indescribable  was  the  scene  and  the  effect  of  that  overwhelm- 
ing evidence. 

"  In  making  his  appeal  to  the  jury,  in  the  spirit  of  candor  he 
admonished  them  out  of  mercy  not  to  sit  as  a  board  of  pardons, 
but  if  the  facts  warrant  it,  and  if  they  found  'guilty'  beyond  all 
reasonable  doubt,  not  to  shrink  from  doing  their  duty,  and  strike, 
unmindful  of  the  consequences,  like  the  blind  Goddess,  who  deals 
her  unerring  blow  in  justice's  name,  though  her  knife  be  ofttimes 
bathed  in  tears." 

Judge  PARSONS  expounded  the  law  in  a  clear  and  forcible  man- 
ner, making  the  legal  definitions  plain  to  all;  and  then  presented  a 
summary  of  the  evidence  that  the  state  had  produced,  describing 
how  the  trouble  commenced  at  the  Fair  grounds  at  dark  on  the 
evening  of  October  2d,  1879,  the  running  fight,  the  clubbing  and 
stabbing  to  death,  for  being  one  of  the  participants  in  which  the 
prisoner  at  the  bar  stood  arraigned  under  an  indictment  for  murder 
in  the  first  degree. 

The  prisoner  was  found  guilty  and  hung  December  3d,  1870, 
havMg  secured  a  reprieve  of  ninety-eight  clays  to  await  the  decision 
of  a  writ  of  error  in  the  Court  of  Appeals,  which  was  denied. 


PORT  HURON  RAILROAD  CASE.  471 


THE    PORT    HURON    RAILROAD    CASE. 


HON.  STANLEY  MATTHEWS  AS  AN  ADVOCATE. 

A.  wise  man  has  said  of  eloquence,  that  its  foundation  is  wisdom; 
that  it  is  "speech  combined  with  the  greatest  pleasure  to  the  hear- 
ei-s;"  that  "  it  steals  in  upon  the  senses  and  implants  new  opinions 
in  men;"  that  through  it  the  mention  of  antiquity  gives  credit  and 
authority  to  the  speaker's  words.  This  was  an  instance. 

A  long  contest  over  the  railroad  from  Flint  to  Port  Huron,  from 
1876  to  1878,  ended  in  a  suit  in  the  United  States  Court  for  the 
Eastern  District  of  Michigan,  in  which  Hon.  Stanley  Mathews  of 
Ohio  appeared  for  Mr.  Vanderbilt's  interests,  in  an  able  argu- 
ment of  four  hours'  duration. 

Mr.  Mathews  is  a  large,  strongly  built,  earnest  man,  nearly  fifty- 
six  years  of  age,  with  full,  heavy,  brownish  beard  tinged  with 
gray;  dark  brown  hair  and  deep-set  dark  gray  eyes;  a  commanding 
manner  and  a  powerful  voice,  under  fine  control.  He  speaks  with 
a  dignity  and  precision  that  makes  each  word  stand  alone  and  holds 
the  closest  attention,  even  in  a  legal  argument.  Before  he  utters 
a  word,  one  can  read  great  sentences  in  his  eyes.  From  the  first 
he  asserts  himself,  and  to  the  last  is  brimful  of  intense,  stalwart 
courage  and  imperial  determination.  Few  men  use  choicer  lan- 
guage, stronger  sentences,  or  more  magnetism.  He  is  aggressive 
and  yet  obliging;  his  conclusions  are  full  of  point  and  vigor,  and 
when  reached  seem  unalterable.  He  builds  his  logic  as  of  granite 
rocks,  and  cements  them  after  the  old  Roman  fashion,  to  endure 
forever;  saving  his  keystones  as  a  crowning  arch,  he  fits  and  matches 
them  with  the  skill  of  a  master  builder. 

No  report  of  words  can  do  him  justice.  It  is  the  delivery — the 
deep,  impressive,  giant  blows,  that  carry  conviction. 

"  This  man,"  said  he,  "  that  is  charged  as  a  reckless  manager — 
that  is  branded  with  epithets  and  loaded  with  unseemly  behavior, 
who  is  he  ?  Why,  your  honors,  he  is  the  father  of  the  road  !  He 
is  the  manager  of  the  enterprise;  requiring  hundreds  of  thousands 
in  money,  while  he  himself  is  poor.  He  has  passed  the  age  of  sixty 
years  in  honorable  pursuits;  he  lias  battled  with  fate,  without  funds, 
and  failed.  Is  he  alone  in  this  ?  Have  not  others  reached  a  hope- 
less struggle  like  his  and  went  down  in  honor?  Few  men,  even  of 


472  MODERN  JURY  TRIALS. 

genius  and  capacity,  pass  the  age  of  sixty  years  and  see  their  bright 
dreams  realized.  He  is  no  exception.  It  is  not  dishonor;  it  is 
want  of  wealth  that  foils  his  plans.  At  his  age  he  has  seen  sor- 
rows, he  has  met  reverses;  it  is  no  time  to  question  motives,  but  in 
this  emergency,  with  the  outward  frame  of  rolling  stock;  and  even 
track,  we  come  forward  with  means  to  breathe  new  life  into  its 
half -created  form;  we  come  with  the  power  to  lift  the  weight;  we 
come  with  the  checks  to  pay  the  men;  we  come  with  the  bond  to 
make  them  secure;  we  come  to  link  this  to  a  chain  of  iron  bands 
that  skirt  and  rib  and  span  the  nation  !  We  ask  to  give  it  life  and 
energy  and  power  to  carry  palaces  through  the  air.  And  I'll  tell 
you,  your  honors,  how.  Here  is  an  affidavit;  it  is  no  part  of  this 
bill,  but  sheds  light  on  it  and  furnishes  good  reading,  and  I'll  read 
it  now." 

Here  he  reads  and  argues,  gives  figures  and  plans,  and  after  an 
argument  reaching  nearly  till  dark,  with  his  face  all  aglow  with 
intense  animation,  his  eyes  beaming  with  determined  fire,  his  hands 
and  arms  surcharged  with  that  trembling,  half-waiting  gesture, 
'  but  dignified  and  impassioned  manner,  he  closes  in  words  nearly 
like  these: 

"  And  now  in  view  of  all  these  facts,  and  of  the  vast  interests  at 
stake,  of  the  large  sums  involved,  of  the  general  good  to  be 
attained,  of  the  responsibility,  sirs,  that  you  assume,  I  shall  ask  but 
one,  reasonable  request,  and  when  I  shall  ask  it  it  will  be  in  lan- 
guage so  plain,  and  with  equity  so  clear,  that  to  grant  it  will  do 
justice  to  every  creditor,  every  laborer,  and  even  the  plaintiff  and 
defendant,  alike.  I  will  found  my  request  so  thoroughly  in  reason 
that  my  brothers  will  concede  no  better  plan  has  been  devised  to 
give  the  relief  prayed  for  in  the  bill.  Twill  now  ask,  your  honors, 
that  this  court  shall  give  Mr.  Vanderbilt  the  management  of  this 
road  from  now  henceforth,  and  shall  offer  a  bond  of  ample  security 
for  $300,000,  to  secure  every  laborer,  contractor  and  corporator, 
each  his  own.  And  in  this  demand  I  appeal  to  the  highest  con- 
science and  gravest  dignity  of  the  court,  to  the  character  and  high 
standing  of  your  honors,  to  your  mature  judgment,  from  which, 
practically,  there  is  no  appeal,  but  which,  when  rendered,  we  trust, 
will  be  final,  and  so  equitable  that  we  shall  feel  that  wisdom  and 
honor  and  conscience  have  combined  to  make  it  indeed  a  just 
decision." 

During  these  long  sentences  one  would  feel  like  saying,  with  the 
populace  to  Mark  Anthony  over  Caesar's  body:  "  Read  the  will ! 


THE  BIBLE  IN  THE  SCHOOLS.  473 

read  the  will ! "  long  before  he  reaches  his  conclusions.  By  his 
intensity,  his  holding  on,  his  vehement  and  determined  language, 
his  bold,  defiant  and  expansive  logic,  he  commands  a  court  and 
expects  obedience. 

His  request  was,  practically,  granted. 


THE    BIBLE    IN    THE    SCHOOLS. 

Trial  at  Cincinnati,  1870. 

The  discussion  of  political  and  moral  questions  as  often  falls  to 
the  lot  of  leading  advocates  as  arguments  to  a  jury.  Formerly 
the  advocate  was  the  instructor  of  the  people,  while,  in  our  day, 
the  press  does  the  preliminary  part,  and  the  courts  generally  end 
the  controversy. 

The  discussion  of  this  question  commenced  and  ended  in  this 
manner.  The  entire  country  was  intensely  interested;  dispatches 
were  daily  cabled  to  Europe,  adding  new  fame  to  the  orators  and 
heat  to  an  excited  contest,  that  called  for  all  the  learning  and  acu- 
men of  counsel. 

Stanley  Mathews  met  and  mastered  the  subject  with  great 
skill  and  thoroughness.  Did  space  permit  of  a  full  review  and 
extended  quotations  from  his  address  to  the  judges,  more  would  be 
given.  But  only  the  briefest  story  can  be  related,  which  is:  In 
November,  1869,  John  Minor  petitioned  the  Superior  Court  of  Cin- 
cinnati for  an  injunction  to  restrain  the  School  Board  from  enforc- 
ing a  resolution  passed  by  them,  which  repealed  a  former  resolution 
requiring  "  the  opening  exercise  in  every  department  to  commence 
by  reading  a  portion  of  the  Bible  under  direction  of  a  teacher,  and 
appropriate  singing  by  the  pupils."  A  temporary  injunction  was 
granted.  The  board  claimed  the  court  had  no  jurisdiction. 

The  arguments  of  the  question  lasted  five  days.  Messrs.  Wnu 
M.  Ramsey,  Geo.  R.  Sage  and  Rufus  King,  for  plaintiffs;  and  J. 
B.  Stallo,  George  Hoadly  and  Stanley  Mathews,  for  defendants. 
Mr.  Mathews  grew  very  earnest  and  eloquent,  and  made  by  far  his 
greatest  argument;  opposed  by  public  opinion,  opposed  by  the 
court,  only  intensified  his  research  and  delivery.  He  gave  a  brilli- 
ant and  beautiful  apostrophe  to  the  Bible,  which  appears  near  the 
close  of  his  address.  Judge  Stallo  made  a  humorous  address; 


474  MODERN  JURY  TRIALS. 

Judge  Hoadley  a  very  able  legal  argument.     In  fact  the  six  argu- 
ments were  all  able,  notably  that  of  W.  H.  Ramsey. 

Mr.  Mathews  said: 

May  it  Please  your  Honors  :  It  would  cost  me  a  very  painful 
physical  effort  to  appear  to-day  in  any  case;  it  has  cost  me  a  very 
difficult  and  painful  mental  effort  to  appear  in  this.  It  is  easy  to 
swim  with  the  tide,  to  go  with  the  current,  to  follow  in  the  wake 
of  the  multitude.  To  do  things  that  are  popular  is  not  hard.  But 
to  stand  by  a  man's  individual  moral  convictions,  in  opposition  not 
to  enemies,  but  to  friends,  tries  a  man.  If  your  honors  please,  it 
tries  me.  Except  the  loss  of  dear  children,  this  is  the  most  painful 
experience  of  my  life — to  be  told  that  I  am  an  enemy  of  religion, 
that  I  am  an  opponent  of  the  Bible,  that  I  have  lost  in  this  com- 
munity my  Christian  character,  and  that  my  children  and  my 
grand-children  will  reproach  my  memory  for  this  day's  work.  For 
all  that,  and  more,  has  not  been  whispered  merely  through  the 
crowds,  but  has  been  told  me  to  my  face.  If  your  honors  please,  I 
would  be  silent  to-day,  if  I  dared,  but  I  have  no  choice. 

Believing,  as  I  do,  that  an  appeal  is  being  made  to  this  court  to 
wrest  the  law  to  an  illegal  end,  as  a  lover  of  my  profession,  I  am 
under  a  professional  obligation  to  withstand  it.  Believing,  as  I 
do,  that  doctrines  the  most  dangerous  and  mischievous  to  the  value 
and  safety  of  our  glorious  system  of  public  schools  are  being 
preached  and  promulgated,  doctrines  that  are  equally  as  dangerous 
and  mischievous  to  civil  order  and  the  safety  and  peace  of  the 
state,  as  a  citizen,  I  feel  under  still  higher  obligations  to  oppose 
them.  Believing,  as  I  do,  that  this  suit  and  the  principles  on  which 
it  is  maintained,  and  can  only  be  maintained,  cause  a  book,  that 
I  believe  to  be  of  no  human  origin — to  contain  the  very  words  of 
God — to  be  made  the  subject  legitimately  of  public  criticism  in  a 
court  of  justice,  and  only  next  spring  to  be  bandied  about  as  a 
foot-ball  between  political  parties,  and  a  religion  which  it  is  the 
greatest  honor  and  pride  of  my  life  to  be  able  to-day  to  stand  in 
public  and  confess,  to  be  made  the  watchword  of  con',  nding  fac- 
tions in  the  state;  believing  that  both  that  book  and  that  religion 
are  thus  discredited,  as  a  lover  of  the  one,  and  as  a  disciple  of  the 
other,  my  responsibility  to  God  and  my  conscience  will  not  allow 
me  to  do  anything  else  than  to  speak. 

I  do  not,  indeed,  doubt  that  the  majority  of  those  whose  views 
I  am  opposing,  are  actuated  by  sincere  motives  and  an  honest 
desire  to  do  what  seems  to  them  to  be  right,  and  believe  that  their 
ocurse  is  necessary  to  preserve  the  honor  of  religion,  respect  for 


THE  BIBLE  IN  THE  SCHOOLS.  475 

the  Bible  and  the  best  interest  of  the  state.  It  is  natural  enough 
that  they  should  feel  with  some  sensitiveness  the  rudeness  of  an 
unexpected  shock  to  their  prejudices,  hardened  into  habits  by  the 
practice  of  many  years;  and  that  they  should  resist  and  resent  what 
they  regard  as  an  attack  upon  religion  and  an  insult  to  a  book  they 
believe  to  be  divine,  without  inquiring  whether,  without  regard  to 
the  motives  of  individuals  or  the  reasons  which  governed  them,  the 
action  of  the  school  board,  considered  in  its  legal  aspects  and  rela- 
tions, is  not  just,  reasonable  and  right.  I  am,  nevertheless,  con- 
strained by  my  convictions,  deliberately  to  repeat,  that  it  seems  to 
me  that  the  real  source  of  the  public  feeling  against  the  action  of 
the  school  authorities,  is  not  so  much  a  regard  for  the  substance  of 
religious  education  as  solicitude  for  the  name  of  Protestant  supre- 
macy. The  sting  consists  in  having  to  haul  down  the  Protestant 
flag  without  thinking  whether  they  had  any  business  to  be  flaunt- 
ing it  in  their  neighbors'  faces.  *  *  * 

Why,  if  your  honors  please,  if  I  remember  rightly,  in  the  opening 
of  his  speech  at  Pike's  Opera  Hall,  the  commencement  of  this  suit 
and  of  this  controversy,  he  laid  the  foundation  of  his  argument  in 
the  dedication  of  the  continent  by  its  first  discoverer  to  Christi- 
anity, and  he  might  have  added  to  the  Pope  of  Rome.  He  and  his 
colleagues  enlarged  upon  the  fact  that  all  the  early  governments  of 
the  colonies  were  based  upon  the  recognition  of  the  binding  obli- 
gation of  the  same  law;  that  the  Declaration  of  Independence  was 
also  a  recognition  of  the  same  fact,  and  that  the  Federal  Constitu- 
tion was  itself  based  implicitly  and  necessarily  upon  the  existence 
of  the  same  state  of  things.  Now,  if  this  be  so,  if  Christianity  is 
a  system  of  law  binding  on  the  citizens,  as  being  a  command  from 
the  supreme  civil  power  that  is  as  extensive  as  our  national  institu- 
tions, lying  at  the  base  of  them  all,  federal  and  national,  then  of 
course  the  conclusion  follows  that  the  people  of  Ohio,  as  such,  have 
no  right  to  repeal  or  abrogate  it;  and  that,  consequently,  as  being 
a  part  of  that  universal  frame  of  government  in  which  they  form 
but  a  part,  they  can  have  nothing  in  their  constitution  which 
denies  it  or  is  inconsistent  with  it.  But  it  was  not  my  purpose  to 
insist  upon  any  thing  as  deducible  from  that  view.  It  is  sufficient 
for  the  purposes  of  my  argument  to  allow  the  gentlemen  to  stand 
upon  the  narrower  ground,  if  they  prefer  it,  that  Christianity,  as  a 
system  of  law,  is  recognized  and  made  valid  and  binding  in  the 
state  of  Ohio  by  the  supreme  civil  power  that  exercises  jurisdiction 
here. 

But  this  wiL  not  do.  We  may  call  the  eccentricities  of  con- 
science, vagaries,  if  we  please;  but  in  matters  of  religious  concern 


476  MODERN  JURY  TRIALS. 

we  have  no  right  to  disregard  or  despise  them,  no  matter  how 
trivial  and  absurd  we  may  conceive  them  to  be.  In  the  days  of  the 
early  Christian  martyrs,  the  Roman  lictors  and  soldiers  despised 
and  ridiculed  the  fanaticism  that  refused  the  trifling  conformity  of 
a  pinch  of  incense  upon  the  altar,  erected  to  the  Caesar"  that  arro- 
gated to  himself  the  title  and  honor  of  "divine,"  or  of  a  heathen 
statue.  History  is  filled  with  the  record  of  bloody  sacrifices  which 
holy  men  who  feared  God  rather  than  men,  have  not  withheld,  on 
account  of  what  seemed  to  cruel  persecutors  but  trifling  observ- 
ances and  concessions.  And  especially  the  history  of  the  Protestant 
divisions  in  religion,  is  the  record  of  the  fearlessness  with  which 
men,  in  the  exercise  of  the  rights  of  conscience,  have  not  hesitated 
to  fill  the  world  with  their  schisms,  upon  what  to  others  appear  to 
be  the  merest  and  most  insignificant  forms ;  so  that  they  have 
seemed  to  worship  iconoclasm  rather  than  what  seemed  to  them  to 
be  forbidden  images.  A  posture,  a  gesture,  the  sign  of  a  cross,  the 
bowing  of  the  head,  a  genuflexion,  the  sprinkling  of  a  few  drops 
of  water,  a  few  words  said  over  a  wafer,  a  picture,  a  lighted  candle, 
a  vestment,  whether  words  shall  be  said  or  sung,  whether  choristers 
shall  be  dressed  in  surplices,  whether  there  shall  be  a  black  gown, 
or  a  white  gown,  or  no  gown  at  all,  whether  prayer  shall  be  read  or 
said,  whether  a  psalm  shall  be  chanted,  or  if  read,  whether  by  min- 
ister alone  or  minister  and  people  responsively,  or  whether  a  hymn 
not  composed  by  inspiration  may  be  sung,  whether  the  music  shall 
be  led  by  a  precentor  or  accompanied  by  an  instrument,  and  if  an 
instrument  whether  it  shall  be  viol  or  organ,  whether  a  sermon  may 
be  read,  or  shall  be  committed  to  memory  and  spoken  without  man- 
uscript, or  preached  without  verbal  preparation  ;  these  and  perhaps 
a  hundred  other  like  things,  of  no  greater  import,  not  to  speak  of 
the  numberless  variances  of  opinion  upon  matters  confessedly  not 
essential  to  religious  conduct  and  character,  have  nevertheless 
been  regarded  by  religious  men  as  sufficient  in  conscience  to  justify 
a  breach  of  the  unity  of  the  church  ;  and  it  is  notorious,  that  the 
heat  of  contention  between  sects,  divided  upon  points  of  faith  or 
order,  has  been  in  proportion  to  the  narrowness  of  the  line  that 
has  divided  them. 

Conscience,  if  your  honors  please,  is  a  tender  thing,  and  tenderly 
to  be  regarded  ;  and  in  the  same  proportion  in  which  a  man 
treasures  his  own  moral  integrity,  sets  up  the  light  of  conscience 
within  him  as  the  glory  of  God  shining  in  him  to  discover  to  him 
the  truth,  so  ought  he  to  regard  the  conscience  of  every  other  man, 
and  apply  the  cardinal  maxim  of  Christian  life  and  practice, 


THE  BIBLE  IN  THE  SCHOOLS.  477 

"  Whatsoever  ye  would  that  men  should  do  unto  you,  do  ye  even 
so  unto  thorn." 

They  ask,  "  Have  Protestants  no  rights  ?  Can  not  the  majority 
of  the  community  insist  upon  their  consciences  ?  Must  the  rights 
of  minorities  alone  be  consulted  ?  Are  we  to  be  ruled  by  Catholics, 
or  Jews,  or  Infidels  ?  " 

The  answer  is  obvious  and  easy.  Protestants  have  no  rights,  as 
such,  which  do  not  at  the  same  time  and  to  the  same  extent,  belong 
to  Catholics  as  such,  to  Jews  and  Infidels  too.  Protestants  have  a 
civil  right  to  enjoy  their  own  belief,  to  worship  in  their  own  way, 
to  read  the  Bible  and  to  teach  it  as  part  of  their  religion,  but  they 
have  no  right  in  this  respect  to  any  preference  from  the  state,  or 
any  of  its  institutions;  they  have  no  right  to  insist  upon  Protestant 
practices  at  public  expense,  or  in  public  buildings,  or  to  turn 
public  schools  into  seminaries  for  the  dissemination  of  Protestant 
ideas.  They  can  claim  nothing  on  the  score  of  conscience,  which 
they  can  not  concede  equally  to  all  others.  It  is  not  a  question 
of  majorities  or  minorities ;  for  if  the  conscience  of  the  majority 
is  to  be  the  standard,  then  there  is  no  such  thing  as  right  of 
conscience  at  all.  It  is  against  the  predominance  and  power  of 
majorities,  that  the  rights  of  conscience  are  protected,  and  have 
need  to  be. 

There  is  one  practical  test  to  which  this  matter  can  be  brought, 
that,  if  it  would  only  be  honestly  applied  by  every  one  within  the 
sound  of  my  voice,  I  think  would  settle  this  controversy  without 
another  word,  and  that  is  this  :  Suppose  this  was  a  Catholic  com- 
munity and  the  Protestants  were  in  the  minority,  and  suppose  that 
the  Catholics  had  established  a  system  of  common  schools  in  which 
they  had  declared  that  religion,  morality  and  knowledge  being 
essential  to  good  government,  therefore  the  general  assembly 
should  pass  laws  for  the  purpose  of  protecting  every  religious 
denomination  in  the  enjoyment  of  its  own  mode  of  public  worship, 
and  also  for  the  encouragement  of  schools  and  the  means  of  edu- 
cation; and  that,  therefore,  they  had  created  a  large  fund,  taken 
partly  out  of  my  pocket  and  partly  out  of  yours,  and  of  the 
remainder  of  the  citizens,  for  the  establishment  of  a  magnificent 
system  of  schools,  and  had  said  :  "  But  inasmuch  as  our  constitu- 
tion requires  that  religion  shall  be  the  handmaid  of  government, 
therefore  we  must  incorporate  religious  instruction  into  those 
schools,  and  we  know  no  religion  except  that  which  Mother  Church 
teaches,  and  we  know  no  hands  to  teach  it  except  those  whom  God 
has  appointed,  and  whom  His  representative  and  vicegerent  upon 
earth  has  anointed  with  the  holy  oil  of  His  approbation  for  that 


478  MODERN  JURY  TRIALS. 

purpose.  Now,  therefore,  we  shall  declare  by  a  constitutional  rule, 
which  shall  be  so  firmly  fixed  in  the  social  institutions  of  the  coun- 
try that  nothing  can  change  it,  that  every  morning  the  exercises  of 
the  day  shall  be  commenced  by  the  solemn  worship  in  the  sacrifice 
of  the  mass."  , " 

It  is  said  there  are  hundreds  and  thousands  of  children  in  this 
goodly,  this  Christian  city,  that  have  no  chance  or  opportunity  for 
being  educated  in  what  my  friends  on  the  other  side  call  "the 
elementary  truths  of  Christianity,"  not  even  in  a  knowledge  of 
that  "broad  Christianity,"  unless  it  can  be  given  to  them  by  a 
perusal  every  morning,  by  the  teacher,  of  a  few  verses  out  of  the 
Bible  in  the  common  schools.  I  say,  if  it  be  so,  it  is  a  lamentable 
confession  of  great  lack  and  neglect  of  duty,  not  on  the  part  of  the 
state,  but  on  the  part  of  the  church,  meaning  by  that  the  invisible 
body  of  true  believers  who  are,  as  they  believe,  to  create  the  King- 
dom of  Heaven  upon  earth. 

It  is  said  they  are  in  the  by-ways,  lanes  and  alleys.  And  can 
they  not  be  reached  there  ?  Can  not  the  church  send  out  its  minis- 
ters ?  or  are  they  too  busy,  day  after  day,  in  their  studies,  preparing 
to  dole  out  dogmatic  theology  Sunday  after  Sunday,  to  the  tired 
ears  of  their  wearied  congregations  ?  Can  not  they  send  out  their 
Sunday-school  teachers?  Can  not  they  send  out  their  missionaries? 
Why,  the  command  of  the  Savior  was  to  go  out  into  the  streets 
and  lanes  of  the  city,  and  into  the  highways  and  hedges,  and  bring 
all  in,  bring  them  in  to  the  feast  which  he  had  prepared  —  this 
feast  of  fat  things,  of  goodly  things.  Must  we  say  that  the  church 
has  grown  idle  and  lazy,  and  can  only  hobble  on  its  crutches,  and 
therefore  that  our  school  directors  must  set  themselves  up  as  teach- 
ers of  religious  truth?  No!  let  the  church  cease  to  depend  upon 
any  adventitious  or  external  aids.  Let  her  rely  solely  upon  the 
omnipotent  strength  of  the  spirit  of  the  Lord  that  is  in  it.  Let  it 
say  to  the  state,  "  hands  off  ;  it  is  our  business,  it  is  our  duty,  it  is 
our  privilege  to  educate  the  children  in  religion  and  the  true 
knowledge  of  godliness."  Don't  let  them  starve  on  the  husks  of  a 
broad  Christianity.  Let  us  give  them  that  which  is  definite,  and 
distinct,  and  pointed — the  everlasting  and  saving  truths  of  God's 
immortal  Gospel. 

APOSTROPHE  TO  THE  BIBLE. 

But  if  your  honors  please,  let  me  say,  for  I  conceive  it  to  be  a 
privilege  to  say  it,  that  I  believe  that  this  book,  which  I  hold  in  my 
hands,  is  a  sacred  book  in  the  highest  sense  of  the  term.  I  believe 
that  it  is  the  word  of  the  living  God,  as  essential  to  our  spiritual 


THE  BIBLE  IN  THE  SCHOOLS.  479 

nourishment  and  life  as  the  bread  we  eat,  and  the  water  that  we 
drink  to  quench  our  thirst  is,  for  our  bodies.  It  records  the  history 
of  the  most  marvelous  appearance  that  ever  occurred  in  human  his- 
tory— the  advent  in  Judea  of  the  man  Christ  Jesus,  the  promised 
Messiah  of  old,  whom  Moses  wrote  about,  and  of  whom  Moses  was 
a  feeble  type;  whom  Joshua  predicted  when  he  led  the  hosts  to 
take  possession  of  the  happy  land  and  prefigured;  whom  all  the 
prophets  foretold,  and  the  Psalmist  sung,  and  the  people  sighed 
for,  throughout  all  the  weary  ages  of  their  captivity  and  bondage; 
who  appeared  in  the  light  and  brightness  of  the  heathen  civiliza- 
tion of  the  Augustan  age;  who  spake  as  never  man  spake;  who 
healed  the  diseases  of  the  people;  who  opened  their  eyes;  who 
caused  the  dumb  to  speak,  the  blind  to  see,  the  deaf  to  hear,  and 
preached  the  Gospel  to  the  poor;  who  was  persecuted  because  he 
was  the  living  representative  of  divine  and  absolute  truth,  and  who 
was  lifted  up  upon  the  cross  charged  with  blasphemy  untruly,  but 
slain  upon  the  baser  charge  of  treason  to  the  Roman  Caesar,  while 
in  the  very  act  of  declaring  that  his  "kingdom  was  not  of  this 
world;"  lifted  up,  to  be  sure,  by  the  hands  of  men,  of  ignorant 
men,  for  whom  and  for  whose  forgiveness  he  prayed,  "because  they 
knew  not  what  they  did;"  lifted  up  by  their  hands,  but  in  pursu- 
ance of  a  covenant  that  he  had  made  in  eternity  with  His  Father 
that  it  should  thus  come  to  pass,  because  without  the  shedding  of 
blood  there  was  to  be  no  remission  of  sin;  lifted  up  in  order  that 
he  might  draw  all  men  unto  himself,  that  whosoever  looked  upon 
him  might  be  healed  of  the  poison  of  original  sin  and  live. 
"Behold  the  Lamb  of  God  which  taketh  away  the  sins  of  the 
world  ! "  That,  if  your  honors  please,  is  my  credo.  If  I  am  asked 
how  I  prove  it,  I  enter  into  no  disputation  or  doubtful  argument. 
I  simply  say  that  his  divinity  shone  into  my  heart,  and  proved 
itself  by  its  self-evidence.  I  have  not  three  witnesses  only,  if  your 
honors  please,  above.  I  have  five — five  witnesses  in  heaven  to-day, 
that  are  calling  to  me  to  come  to  them.  I  would  not  give  up,  I 
would  not  abate  a  jot  or  a  tittle  of  my  belief  in  that  book,  and  in 
the  God  that  it  reveals,  and  the  salvation  that  it  offers  for  all  that 
this  world  can  give.  And  yet,  if  your  honors  please,  in  the  spirit 
of  my  Divine  Master,  I  do  not  want  to  compel  any  man.  If  he 
can  not  believe — oh  !  it  is  his  misfortune,  not  less  than  his  fault, 
and  not  to  be  visited  on  him  as  a  penalty  by  any  human  judgment. 
It  is  not  to  be  the  ground  of  exclusion  from  civil  rights;  it  is  not 
to  bar  him  from  any  privilege.  It  is  even,  if  your  honors  please, 
to  protect  him  from  the  finger  of  scorn  being  pointed  and  slowly 
moved  at  him  as  if  he  were  out  of  the  pale  of  divine  charity.  Oh, 


480  MODERN  JURY  TRIAL& 

no;  it  was  to  the  lost  that  the  Saviour  came,  to  seek  them  as  well 
as  to  save  them;  and  I  know  no  other  way,  I  know  no  better  way, 
to  recommend  the  truth  of  that  book  to  those  who  can  not  receive 
it,  but  to  live  like  him  whose  teaching  is  to  be  just,  to  be  good,  to 
be  kind,  to  be  charitable,  to  receive  them  all  into  the  arms  of  my 
human  sympathy,  and  say  to  them:  "Sacred  as  I  believe  that  truth 
to  be,  just  so  sacred  is  your  right  to  judge  it." 

[After  citing  many  authorities,  he  thus  spoke  of  the  church]: 
Let  her  rise  up  in  the  full  measure  and  majesty  of  her  innate 
spiritual  strength;  let  her.  gird  her  loins  for  the  mighty  task;  let 
her  address  herself  with  all  earnestness  and  heroic  zeal  to  the  great 
but  self -re  warding  labors  of  Christian  love;  let  her  prove  herself 
by  her  works  of  self-denying  charity,  to  be  the  true  Church  as 
Jesus  proved  himself  to  the  disciples  of  John  to  be  the  true  Mes- 
siah, when  he  told  them,  "  Go  and  show  John  again  those  things 
which  ye  do  hear  and  see;  the  blind  receive  their  sight  and  the  lame 
walk,  the  lepers  are  cleansed  and  the  deaf  hear,  the  dead  are  raised 
up  and  the  poor  have  the  gospel  preached  to  them."  Let  her 
organize  all  her  forces  for  a  more  determined  and  closer,  hand-to- 
hand  struggle  with  sin  and  evil,  of  every  form,  and  the  misery  and 
wretchedness,  of  which  they  are  the  cause.  Let  her  ministers  and 
missionaries  not  only  proclaim  from  their  pulpits  "the unsearchable 
riches  of  Christ,"  but  descending  among  the  hungry  multitudes 
distribute  to  them  the  precious  bread  of  life.  Let  them  declare  to 
the  rich  and  the  educated,  their  duties,  their  responsibilities  and 
their  privileges,  and  lead  them  in  person  to  the  places  where  their 
work  is  to  be  done,  and  stimulate  them  by  their  example  to  do  it. 
Let  them  inspire  by  their  enthusiasm,  and  fire  with  their  zeal,  the 
indifferent  and  the  slothful.  Let  them,  by  setting  forth  the  beauty 
of  holiness  and  the  purity  of  "  the  truth  as  it  is  in  Jesus,"  which 
is  able  to  make  us  wise  unto  salvation,  send  the  healthful  and  invig- 
orating influences  of  our  holy  religion  through  every  social  relation, 
and  glorify  the  business  and  the  pleasures  of  our  daily  and  secular 
life,  by  consecrating  them  to  the  glory  of  our  Father  who  is  in 
heaven.  Let  them  turn  these  streams  of  the  pure  water  of  life, 
welling  up  in  the  hearts  of  their  followers,  into  the  dark  and  pesti- 
lential receptacles,  where  ignorance,  poverty,  misery  and  sin  are 
gathered,  and  breed  disorder  and  death.  Then  the  great  and  the 
good,  the  noble  and  the  wise,  in  the  unity  of  the  Spirit  and  the  bond 
of  peace,  forgetting  those  things  which  are  behind  and  reaching 
forth  unto  those  things  which  are  before,  pressing  toward  the  mark 
for  the  prize  of  the  high  calling  of  God  in  Christ  Jesus,  in  one  grand 
array,  will  meet  and  wrestle  against  principalities,  against  powers, 


THE  BIBLE  IN  THE  SCHOOLS.  481 

against  the  rulers  of  the  darkness  of  this  world,  against  spiritual 
wickedness  in  high  places,  and  shall  wrestle  not  in  vain,  for  they 
shall  be  strong  in  the  Lord  and  in  the  power  of  His  might;  clad  in 
the  whole  armor  of  God,  their  loins  girt  about  with  truth,  and  hav- 
ing on  the  breast-plate  of  righteousness;  their  feet  shod  with  the 
preparation  of  the  gospel  of  peace,  and  above  all,  taking  the  shield 
of  faith  wherewith  they  sb;ill  be  able  to  quench  all  the  fiery  darts 
of  the  wicked,  the  helmet  of  salvation  and  the  sword  of  the  Spirit, 
which  is  the  word  of  God,  praying  always  with  all  prayer  and  sup- 
plication in  the  Spirit.  Then  shall  be  hastened  the  promised  time 
of  the  coming  of  our  King  when  there  shall  be  a  new  heaven  and  a 
new  earth,  wherein  dwelleth  righteousness — the  holy  city,  the  New 
Jerusalem,  coming  down  from  God  out  of  heaven,  prepared  as  a 
bride  adorned  for  her  husband,  the  tabernacle  of  God  with  men, 
where  He  will  dwell  with  them  and  they  shall  be  His  people,  and 
God  himself  shall  be  with  them  and  be  their  God. 

But  let  them  remember  that  to  advance  this  glorious  consumma- 
tion the  Church  must  throw  away  the  sword  of  civil  authority 
which  some  of  her  too  eager  and  impetuous  sons  would  put  into 
her  hands;  that  the  Kingdom  of  her  Lord  is  not  of  this  world;  that 
she  must  render  unto  Caesar  the  things  that  are  Caesar's,  and  unto 
God  the  things  that  are  God's;  that  she  must  not  permit  any  unholy 
dalliance  with  the  solicitations  of  worldly  power  or  advantage,  but 
keep  herself  unspotted  from  the  world;  that  her  dominion  is  over 
the  minds  and  hearts  of  men,  and  her  victory  achieved  with  spirit- 
ual weapons  alone,  by  appeals  to  their  reason,  to  their  conscience, 
to  the  highest  and  best  in  their  ruined  nature,  to  be  restored  by  the 
power,  not  of  human  laws,  but  of  the  Spirit  of  God;  and  that  in 
proportion  as  she  becomes  conscious  of  her  origin  and  destiny,  of 
the  divine  and  immortal  life  she  bears  in  her  bosom,  hid  with  Christ 
in  God,  and  grows  into  the  recognition  of  her  mission  and  place  in 
the  work  and  history  of  the  world  and  of  eternity,  she  will  dissolve 
all  ties  that  bind  her  to  secular  influences  and  the  natural  sphere  of 
human  interests  and  actions,  and  establish  herself  firmly  upon  the 
seat  of  her  spiritual  throne,  whence  are  complete  and  equal  rights, 
and  where  every  person  can  join  any  sect  he  pleases,  or  belong  to 
none,  or  found  a  sect  for  himself. 

I  have  not,  may  it  please  your  honors,  strength  to  continue. 
There  is  a  world  of  things  that  crowd  upon  me  to  say,  but  I  must 
forbear;  but  I  cannot  close  and  take  my  leave  of  this  case  without 
saying  that  I  owe  my  profound  and  sincere  acknowledgments  to 
your  honors  for  the  patience  with  which  I  have  been  treated.  I 
know  that  I  have  needed  forbearance;  I  have  not  perhaps  deserved 
81 


482  MODERN  JURY  TRIALS. 

it,  but  your  honors  know  the  palliations  of  the  case.  I  could  not 
say  less.  What  I  have  said,  I  know  your  honors  will  believe  me, 
I  have  said  in  the  fear  of  God,  because  I  believed  it  was  the  truth 
and  the  right.  If  I  have  erred,  if  I  am  wrong,  I  can  only  look 
to  Him  for  pardon  who  is  willing  to  extend  it  to  all  who  humbly 
seek  it.  But  I  tell  your  honors  my  heart  is  in  this  thing.  I  balieve 
it  to  be  a  matter  of  the  most  vital,  of  the  most  momentous  and 
profound  importance.  Whether  I  be  right  or  wrong,  it  calls 
upon  your  honors,  it  summons  you  to  a  very  high,  a  very  diffi- 
cult and  a  very  important  duty.  I  shall  make  no  appeal  to  your 
honors.  Your  honors  know  what  your  duty  is,  and  I  know  you 
will  perform  it. 

[  Note. — This  address  is  not  given  for  its  author's  opinion,  but 
for  the  power  of  his  logic.  No  opinion  is  here  given  on  the  merits 
of  the  discussion.  But  he  won.] 


THE  STANDAKD  OIL  COMPANY  CASE. 


AEGUMENT  OF  Hox.  STAXLEY  MATTHEWS, 

This  mammoth  corporation,  "  more  valuable  than  a  gold  mine  or 
a  railroad,**  that  has  coined  its  millions  for  the  company,  was 
organized  in  July,  1876,  as  a  "Confederacy."  It  was  to  keep  its 
business  a  profound  secret,  limited  to  85,000  barrels  per  annum, 
•md  neither  of  the  confederates  to  engage  in  a  rival  business  for 
ten  years. 

The  monopoly  was  broken  by  one  of  the  partners,  and  an  injunc- 
tion applied  for  in  Cleveland  Common  Pleas  Court,  to  restrain  the 
partner  from  doing  business  contrary  to  his  agreement.  The 
injunction  was  denied,  and  the  order  appealed  from,  at  the  hearing 
of  which  this  argument  was  made  by  Mr.  Mathews,  whose  spe- 
cial forte  is  in  convincing  a  court  of  learned  judges.  His  sen- 
tences are  so  long,  and  reasons  so  exhaustive,  that  few  jurymen 
could  comprehend  them. 

He  is  one  of  the  few  men  whose  court  arguments  are  lively  and 
command  attention.  His  periods  are  all  massive  and  Websterian, 
replete  with  choice  selections,  apt  citations,  and  plain,  sensible  con 


STANDARD  OIL  COMPANY  CASE.  483 

elusions.  So  confident  is  he  in  his  positions  that  his  own  belief 
inspires  his  whole  argument  with  force  and  earnestness.  This 
address  is  condensed  to  a  very  brief  one  from  144  pages,  and  con- 
tains one  of  the  longest  and  strongest  periods  ever  delivered  by 
Mr.  Matthews. 

After  an  elaborate  legal  statement  Stanley  Matthews  said: 

It  was  agreed,  your  honor,  that  it  should  be  kept  profoundly 
secret — secret  not  merely  from  the  customers  of  the  firm,  not 
merely  from  the  consumers  of  this  article,  not  merely  from  the 
inquisitive  eye  of  an  over-curious  public  that  had  no  business  to 
inquire  into  the  private  matters  that  belonged  to  the  firm,  but  from, 
the  bookkeepers  of  the  firm  of  Scofield,  Shurmer  &  Teagle,  from 
the  agents,  employes  and  hands — aye,  from  the  very  wives  of  the 
parties  themselves.  And  this  was  done  practically.  The  intention 
was  executed.  It  was  adopted  as  a  practical  construction  of  the 
understanding  of  the  parties  in  reference  to  this  agreement  that  a 
fictitious  and  false  account  should  be  opened  on  the  books  of  Sco- 
field, Shurmer  &  Teagle  to  represent  the  transactions  under  this 
agreement,  and  that  a  box  in  the  postoffice  should  be  rented  in 
another  fictitious  name,  in  which  all  communication  between  the 
Standard  Oil  Company  and  Scofield,  Shurmer  &  Teagle  should  be 
deposited,  no  one  having  access  to  that  box,  or  knowing  from  whom 
the  communications  came,  except  these  parties  personally  them- 
selves. The  significance  of  that  fact  will  appear  hereafter  when 
we  come  to  consider  what  the  law  is  in  regard  to  it.  As  to 
the  fact  there  is  no  doubt  ;  and  it  demonstrates  this  :  that  the 
whole  thing — the  mode  of  keeping  these  accounts  and  of  trans- 
mitting these  communications,  and  of  suppressing  all  possible 
knowledge  of  the  existence  of  this  arrangement — was  not  in  the 
usual  course  of  business.  It  is  not  the  way  in  which  business  men 
carry  on  ordinary  business  enterprises,  and  it  reflects  light  upon 
the  character  of  the  arrangement  entered  into  between  the  parties 
and  upon  the  intention  and  motive  that  actuated  them  in  it,  and 
shows  what  their  purpose  was;  to  wit,  that  this  joint  adventure,  so 
called,  was  a  mere  form,  a  mere  sham,  a  mere  device.  It  was 
colorable.  It  was  not  intended  as  an  ordinary  joint  adventure  in 
which  parties  hazard  agreed  proportions  of  capital,  time  and  skill  in 
the  result  of  a  particular  business  enterprise,  but  refer  to  outside 
influences  and  to  effects  other  than  those  involved  in  the  success. 

How  does  it  happen  that  the  Standard  Oil  Company  is  in  the 
position,  which  it  assumes  in  this  stipulation,  by  which  it  can  say 
to  the  defendants,  "  You  allow  us,  in  our  name,  not  in  your  own, 


484  MODERN  JURY  TRIALS. 

to  send  to  market  the  product  of  your  oil  refinery,  by  such  routes 
as  we  may  select,  and  we  will  be  able  to  give  you  lower  rates  of 
freight,  by  means  of  rebates,  than  you  can  get  by  open  stipula- 
tions in  the  market  by  going  from  one  trunk  line  to  another  ?" 
Had  it  the  power  to  procure  freights  on  better  and  more  advanta- 
geous terms  than  the  rest  of  the  public  engaged  in  the  same  busi- 
ness? If  it  had  not,  of  what  value  is  that  stipulation,  and  how 
does  it  operate  as  a  consideration  for  the  restraints  imposed  upon 
these  defendants  in  this  business  ?  And  if  they  had  such  power, 
how  did  they  get  it?  and  what  legal  right  have  they  to  exercise 
it?  By  what  authority  of  law  has  any  railroad  company  a  right 
to  combine  with  the  Standard  Oil  Company  and  say  to  it  that  for 
any  cause,  or  any  consideration,  the  product  of  its  refinery,  or  the 
product  of  any  refinery  shipped  in  its  name,  shall  be  taken  from 
Cleveland,  the  point  of  production,  to  New  York,  or  elsewhere, 
the  point  of  marketing,  at  a  more  favorable  rate  than  the  humblest 
and  the  smallest  manufacturer  in  the  same  business  can  get  ?  Any 
such  arrangement  as  that  would  be  only  a  part  of  the  same  illegal 
and  oppressive  combination  of  which  this  contract  is  a  specimen, 
and  shows,  not,  certainly,  what  the  fact  may  be,  but  beyond  all 
question  shows  what  the  tendency  and  the  ultimate  result  must  be, 
and  that  is  that  if  this  or  any  other  corporation  is  allowed  to  exalt 
itself  in  this  way  and  by  these  means  above  competition,  it  is  also 
exalted  above  the  law.  In  other  words,  if  you  will  put  yourself 
into  our  power  by  agreeing  not  to  come  into  competition  beyond 
the  limit  which  yon  agreed  of  85,000  barrels  per  annum,  in  return 
for  that  we  will  enable  you  to  have  advantages  in  the  transporta- 
tion of  your  product  beyond  what  can  be  had  in  fair  aud  open 
market,  by  secret  arrangements.  These  are  to  be  rebates — excesses 
to  be  paid  over  and  above  the  actual  rate,  and  between  that  and 
the  nominal  rate  held  out  as  the  market  price  for  transportation 
to  the  ordinary  customers  of  the  corporation. 

Now,  what  is  it  these  parties  are  complaining  of  ?  "What  is  the 
specific  injury  which  they  have  suffered  ?  What  is  the  damage 
which  they  have  incurred  ?  What  is  the  loss  that  must  be  made 
good  to  them?  The  facts  that  I  have  stated  demonstrate  that  if 
they  have  suffered  any  injury,  that  if  they  have  received  any  dam- 
age, that  if  they  have  actually  fallen  under  any  loss,  it  is  some 
injury  and  damage  and  loss  outside  of  this  adventure.  The  adven- 
^ure  has  not  suffered  any  loss,  and  the  amount  of  interest  invested 
in  the  adventure  has  not  received  any  detriment,  that  adventure 
has  been  an  immensely  profitable  one;  it  has  been  better  than  a 
gold  mine.  It  has  been  equal  to  a  mint;  for,  without  any  personal 


STANDARD  OIL  COMPANY  CASE.  485 

supervision,  without  any  loss  of  time,  without  any  expenditure 
other  than  the  bare  investment  of  the  money,  insignificant  in  its 
amount  as  compared  with  the  results,  they  have  been  receiving 
dividends  that  are  to  be  counted,  not  by  percentages,  but  by  mul- 
tiplication of  the  original  capital  over  and  over  again.  How  are 
they  hurt  ?  "Why  do  they  complain  ?  "Why,  the  Scofields  say  that 
there  is  a  dreadful  risk  in  this  matter,  and  they  may  be  over- 
whelmed with  personal  responsibilities  incurred  by  virtue  of  the 
action  of  their  partners.  There  is  not  an  allegation  that  a  single 
debt  has  been  contracted.  There  is  not  an  allegation  that  there  is 
a  single  outstanding  unpaid  promissory  note.  There  is  nothing 
whate'ver  to  show  that  this  has  not  been  the  ordinary  and  legiti- 
mate result  of  simply  cash  operation  day  after  day  by  the  devotion 
of  the  time,  the  attention,  the  skill,  the  economy  and  the  prudence 
of  the  men  whom  they  are  arraigning  here  for  subjecting  them  to 
the  dangers  and  hazards  of  this  enterprise.  They  could  afford  to 
lose  something  for  a  year  or  two,  and  then,  on  the  whole,  it  would 
be  an  immensely  profitable  undertaking.  Is  not,  then,  the  conclu- 
sion inevitable  that  the  clamor  of  danger  to  the  interests  that  are 
invested  in  this  enterprise  is  a  false  clamor,  that  the  outcry  is  for 
some  other  reason,  and  that  the  real  injury  has  been  that  the  Stan- 
dard Oil  Company  has  only  made  half  of  the  excess  of  this 
amount,  when,  by  its  right,  it  ought  to  have  made  the  whole;  and 
that  it  had  agreed  that  these  men  should  make  for  them  one-half 
of  all  that  their  industry,  economy  and  enterprise  could  pile  up,  to 
the  extent  of  the  profits  on  85,000  barrels  per  annum;  but  that 
when  it  came  to  anything  more  than  that  they  were  to  have  every 
dollar  of  it  themselves  ?  Then  what  is  the  object  of  this  contract, 
if  it  is  not  to  limit  the  production  of  these  gentlemen  to  this 
amount,  in  order  that  the  Standard  Oil  Company  shall  have  the 
entire  area  of  production  left  unoccupied  by  others  for  its  own 
benefit  ?  And  what  is  that  but  an  agreement  to  stifle  competition, 
to  suppress  opposition,  to  create,  to  the  extent  to  which  the  agree- 
ment goes,  a  monopoly  in  the  hands  of  the  Standard  Oil  Co.  ?  I 
do  not  know  whether  the  Scofields  have  any  interest  in  the  Stan- 
dard Oil  Co.,  as  such,  or  not;  but  their  attitude  and  appearance  in 
this  cause  is  ground  of  suspicion  that  they  are  making  use  of  their 
real  interest  in  this  enterprise  with  their  partners  in  this  firm  as  a 
tender  to  increase  some  interest  which  they  have,  in  which  their 
partners  are  not  entitled  to  share.  Certainly  the  Standard  Oil  Co. 
is  not  seeking  the  interests  of  this  adventure.  They  are  seeking 
the  incidental  and  collateral  benefits  of  this  agreement  to  an  inter- 
est of  their  own,  belonging  exclusively  to  themselves,  and  which 


486  MODERN  JURY  TRIALS. 

is  outside  of  this  adventure,  and  consists  of  that  independent  and 
separate  interest  which  they  previously  had  in  the  conduct  of  their 
business,  which  the  object  of  this  contract  on  its  face  is  to  recon- 
cile the  adverse  and  hostile  interests  of  Scofield,  Shurmer  &  Teagle, 
not  by  limiting  themselves,  but  by  limiting  Scofield,  Schurmer  <fc 
Teagle  to  a  production  of  85,000  barrels  of  refined  oil  per  annum. 
That  is  shown  as  a  matter  of  fact,  as  the  inducement  for  entering  into 
this  covenant  and  agreement,  in  addition  to  the  recitals  contained 
in  it,  by  the  testimony  that  was  read  in  the  affidavit  of  Scofield  as 
to  what  conversation  took  place  between  the  parties  at  the  time 
when  this  amount  of  85,000  barrels  per  annum  was  adjusted  as  the 
relative  proportion  of  the  capacity  of  this  refinery,  and  limited  to 
that.  But  they  took  very  good  care  not  to  limit  themselves  to  a 
corresponding  relative  proportion  of  production  in  their  own 
refineries,  and  then  agreed  that  any  quantity  over  and  above  the 
aggregate  amount  should  be  divided  between  the  parties  in  the 
same  ratio.  Such  an  agreement  would  have  been  in  consonance 
with  the  spirit  of  such  an  understanding,  and  would  have  had  some 
of  the  elements  of  equivalency  and  fairness  in  it.  But  for  ten  full 
years — a  fixed  period — provided  it  suits  the  Standard  Oil  Co.  not 
to  suspend  and  resume  again  in  that  time,  continuously,  without 
regard  to  any  changes  in  the  situation,  without  regard  tc 
any  increase  in  the  price  of  the  article  in  the  market,  without 
regard  to  any  changes  in  the  method  of  production,  without 
regard  to  any  improvements  in  machinery,  without  regard  to 
any  of  the  possible  and  probable  changes  that  may  take  place  in 
this  wonderfully  changing  age  and  country  during  a  period  of  ten 
years — the  ten  years  from  1876  to  1886 — equal  to  a  hundred  years 
of  any  other  century — all  that  time,  in  the  midst  of  all  these  fluctu- 
ations and  changes,  these  men  are  to  be  ground  down  with  their 
noses  to  the  grindstone,  incapable  of  taking  any  advantage  of  any 
favorable  change  to  their  own  interests  or  the  interests  of  the 
public,  the  fixed  terms  of  this  contract  limiting  them  to  a  produc- 
tion of  85,000  barrels  per  year,  while  the  Standard  Oil  Co.  becomes 
by  that — and  if  it  can  make  that,  it  can  make  a  thousand  other 
contracts  with  a  thousand  other  people — becomes  by  that  the 
"  monarch  of  all  it  surveys."  Ten  years !  Why,  it  has  been  but 
a  little  over  thirty  years  since  there  was  no  railroad  in  the  city  of 
Chicago.  On  the  fourth  day  of  July,  1847,  in  that  city  I  heard 
Edward  Bates,  then  a  distinguished  lawyer  in  the  city  of  St.  Louis, 
declare  in  a  public  speech  that  he  had  never  then  seen  a  railroad, 
and  he  could  not  see  one  in  the  town  where  he  was  making  his 
Bpeech.  In  St.  Louis  and  Chicago  to-day,  more  railroad  business 


STANDARD  OIL  COMPANY  CASE.  487 

centres,  perhaps,  than  in  any  other  two  points  on  the  surface  of 
the  earth  !  And  we  have  not  half  done.  We  have  only  half  begun. 
What  changes  are  to  take  place  during  the  progress  of  the  ten 
years  from  1876  to  1886,  no  man  knows.  But  Scofield,  Shurmer  & 
Teagle  are  not  to  have  the  benefit  of  them.  They  are  required  to 
go  to  the  old  treadmill  in  the  old  way,  and  when  they  have  made 
a  profit  on  85,000  barrels  per  annum,  of  which  all  in  excess  of 
$35,000  goes  to  the  Standard  Oil  Company  up  to  $70,000,  and  then 
one-half  of  the  rest.  All  the  rest,  with  all  new  improvements,  new 
developments  and  changes,  is  to  be  swept  into  the  coffers  of  the 
Standard  Oil  Company.  I  suppose  for  the  benefit  of  the  widows 
and  orphans  that  own  its  stock. 

Now,  is  it  the  policy  of  this  country,  is  it  the  policy  of  this  state 
to  allow  a  corporation  to  enlarge  its  powers,  to  increase  its  facili- 
ties, to  draw  to  itself  all  the  business  of  the  kind  which  it  was 
authorized  to  carry  on,  no  matter  whether  conducted  by  itself, 
under  its  own  rules  and  by-laws,  or  by  others,  so  that  it  shall  sit, 
as  that  council  that  was  alluded  to  by  the  gentlemen  on  the  other 
•ide,  "  high  on  a  throne  of  royal  state,'*  and  dictate  to  all  those  who 
have  come  in  subjection  to  it  the  capital  they  shall  employ,  the 
policy  they  shall  pursue,  the  purchases  they  shall  make,  the  prices 
at  which  they  shall  sell,  the  rates  of  transportation  which  they 
shall  employ,  the  methods  by  which  they  shall  supply  the  market, 
the  sales,  the  purchases,  the  negotiations,  the  contracts  ?  Why,  we 
might  have — I  do  not  say  that  we  have;  we  are  arguing  tendencies 
and  not  results — we  might  have  a  corporation  growing  up,  under 
the  influence  of  such  a  simple  principle  as  that,  until  you  might 
hear  some  day  that  it  had  divided  nine  millions  of  dollars  among 
its  corporators  in  one  year  as  profits  on  its  business;  that,  in  the 
short  course  of  ten  years,  men  who  had  started  on  the  same  level, 
as  to  means,  with  the  ordinary  citizen,  shall  have  grown  into  such 
proportions  of  wealth,  as  almost  to  rival  the  descriptions  and  the 
glitter  of  the  Arabian  Nights;  when  no  expense  is  too  vast  for  the 
gratification  of  a  taste,  no  matter  how  trivial,  and  when  a  man, 
simply  for  the  purpose  of  enlarging  the  boundaries  of  the  play 
ground  of  his  children,  may  destroy  a  habitation  worth  fifty  thou- 
sand dollars.  I  am  pointing  out  to  your  honor  what  is  the  inevit- 
able, the  irresistible  tendency  of  allowing  corporate  bodies  to  add, 
at  their  own  volition,  to  the  aggregate  of  those  powers  within 
which  they  are  restrained  by  the  letter  of  the  law.  If  your  honor 
please,  is  this  apprehension  of  danger  an  unreal  one  ?  Is  it  one 
that  is  outside  of  the  limits  of  a  judicial  argument?  The  fear  of 
the  growth  of  corporate  monopolies  is  as  old  as  Magna  Charta, 


488  MODERN  JURY  TRIALS. 

Now  I  come  to  the  chief  question  in  the  case,  and  that  is,  that 
this  contract  is  illegal  and  void,  because  it  is  in  restraint  of  trade. 
It  certainly  docs  not  need  any  definition  of  what  such  a  contract  ia 
to  show  that  this  is  a  contract  in  restraint  of  trade.  A  contract 
which  restrains  trade  is  certainly  a  contract  in  restraint  of  trade; 
and  all  that  it  is  necessary  to  do  is  to  look  at  it  and  to  read  it,  to 
see  what  its  stipulations  are,  in  order  to  determine  whether  or  not 
it  is  within  that  description.  It  does  not  follow  that  it  is  unlawful 
because  in  restraint  of  trade.  That  remains  to  be  considered. 
But  now  the  question  is,  is  it  in  restraint  of  trade?  Does  it 
restrain  these  defendants,  Scofield,  Shurmer  &  Teagle,  in  the  con- 
duct of  their  business  ?  There  certainly  ought  to  be  no  contro- 
versy about  that.  I  pointed  out  this  morning,  in  reading  the  con- 
tract by  sections,  the  various  particulars  in  which  it  does  actually 
have  the  effect,  if  it  is  put  in  force,  to  restrain  them  in  the  conduct 
of  their  business  in  accordance  with  their  own  discretion.  It 
requires  them  to  abstain  from  establishing  any  other  business.  In 
this  the  public  has  a  deep  interest,  both  as  to  the  price  of  raw 
products  and  manufactured  articles  to  buy. 

Kerr  on  Injunctions  has  well  said:  "  Covenants  in  restraint  of 
trade,  though  only  partial,  if  nothing  shows  them  to  be  reasonable, 
are  presumed  to  be  void  upon  grounds  of  public  policy.  But 
covenants  in  partial  restraint  of  trade,  where  there  is  a  fair  and 
reasonable  ground  for  the  restriction,  are  good  and  valid.  They 
are  upheld,  not  because  they  are  advantageous  to  the  individual 
with  whom  the  contract  is  made,  but  because  it  is  for  the  benefit  of 
the  public  at  large  that  they  be  enforced." 

******** 

Now,  if  your  honor  please,  let  us  pause  here  a  moment,  for  this 
establishes  two  or  three  particulars.  In  the  first  place,  it  estab- 
lishes that  every  contract,  even  in  partial  restraint  of  trade,  no  mat- 
ter how  small  the  restraint  may  be,  how  limited  in  extent  or  in 
degree,  or  in  kind,  or  as  to  person,  or  as  to  place,  it  is  presumed  to 
be  bad.  Standing  by  itself,  without  explanation,  on  its  own  face 
the  law  declares  it  to  be  bad.  It  must  be  shown  outside  of  the 
restraint  to  be  good,  by  circumstances  established  to  the  satisfac- 
tion of  the  court,  upon  which  the  court,  expressing  the  judgment 
of  the  law,  can  declare  it  to  be  a  useful  and  proper  contract.  In 
other  words,  all  the  presumptions  are  against  this;  and  you  cannot 
even  presume  against  these  presumptions.  You  cannot  presume 
that  there  are  benefits  to  be  attained  by  the  contract  which  over* 
bear  the  mischief  from  a  restraint  which  the  law  implies.  You 
may  argue  that  there  are  reasons;  you  may  imagine  that  there  are 


STANDARD  OIL  COMPANY  CASE.  489 

circumstances;  you  may  invent  conditions;  you  may  suppose  this, 
that  and  the  other;  but  the  law  is  inexorable.  It  says:  "The  man 
is  restrained,  and  that  is  enough;"  and  until,  as  matter  of  fact, 
proof  declares  that  that  restraint  is  under  such  circumstances  as  to 
make  it  a  useful  and  proper  contract,  the  presumption  of  the  law 
against  its  validity  must  have  full  sway  and  complete  operation. 
Then  the  presumptions  are  all  against  the  contract. 

In  the  next  place,  it  is  a  question  of  law  whether  that  presump- 
tion is  overcome  by  proof  of  other  facts.  It  is  not  a  question  for 
the  jury;  it  is  a  question  on  which  the  court,  out  of  the  testimony, 
extracts  the  materials  of  its  own  judgment.  Of  course,  the  judge 
sitting  in  the  case  has  the  right  to  bring  to  bear  upon  it  whatever 
other  knowledge  he  may  have,  which  is  the  common  property  of 
the  public.  But  he  starts  out  with  what  the  law  has  declared,  by 
virtue  of  its  enactments  from  time  immemorial,  that  restraint  in 
itself  and  of  itself  vitiates  the  contract  until  it  clearly  appears 
otherwise,  that  this  restraint  is  promotive  of  the  public  good. 

I  refer  your  honors  to  a  recent  grain  case  of  our  own  state,  where 
the  court  says: 

"  Prior  to  and  up  to  the  time  of  the  execution  of  the  agreement 
set  out  in  the  bill,  the  four  parties  were  engaged  in  the  grain  busi- 
ness in  the  town  of  Rochelle,  each  on  his  own  account,  and  in  com- 
petition with  the  others.  But  after  the  agreement  was  executed 
all  competition  ceased.  All  the  warehouses  in  the  city  and  every 
lot  suitable  to  erect  a  warehouse  upon  was  controlled  by  the  com- 
bination. Some  were  purchased  and  others  leased,  so  that  the 
combination  formed  effectually  excluded  all  opposition  in  the  pur- 
chase, sale,  storage  and  shipment  of  grain  in  that  market.  Secret 
meetings  were  held  in  the  night  time  by  the  parties  to  the  contract, 
at  which  the  price  to  be  paid  for  grain  was  agreed  upon,  rates  for 
storage  and  shipment  fixed,  in  order  that  the  public  should  be  kept 
in  ignorance  of  the  plans  and  operations  of  this  illegal  combina- 
tion. To  the  public  the  four  houses  were  held  out  as  competing 
firms  in  business.  Secretly  they  had  conspired  together  and  were 
working  in  a  common  cause  in  the  sole  interest  of  each  other.  The 
language  used  in  the  contract  itself  leaves  no  room  for  doubt  as  to 
the  purpose  for  which  the  agreement  was  entered  into,  as  a  few 
extracts  will  show:  'Each  separate  firm  shall  conduct  their  own 
business  as  heretofore  as  though  there  was  no  partnership  in 
appearance,  keep  their  own  accounts,  pay  their  own  expenses, 
ship  their  own  grain,  and  furnish  their  own  funds  to  do  busi- 
ness with,'  etc.,  reciting  parts  of  the  articles  which  I  have 


490  MODERN  JURY  TRIALS. 

read.  While  the  agreement,  upon  its  face,  would  seem  to  indi- 
cate that  the  parties  had  formed  a  co-partnership  for  the  pur- 
pose of  trading  in  grain;  yet,  from  the  terms  of  the  contract 
and  the  other  proof  in  the  record,  it  is  apparent  that  the  true 
object  was  to  form  a  secret  combination  which  would  stifle  all  com- 
petition, and  enable  the  parties,  by  secret  and  fraudulent  means,  to 
control  the  price  of  grain,  cost  of  storage  and  expense  of  shipment. 
In  other  words,  the  four  firms,  by  a  shrewd,  deep-laid,  secret  com- 
bination, attempted  to  control  and  monopolize  the  entire  grain 
trade  of  the  town  and  surrounding  country.  That  the  effect  of 
this  contract  was  to  restrain  the  trade  and  commerce  of  the  coun- 
try is  a  proposition  that  cannot  be  successfully  denied." 

Now  it  did  not  tend  to  restrain  the  amount  of  the  trade  of  any 
one  of  the  individuals;  it  only  tended  to  restrain  the  discretion  of 
each  in  the  management  of  his  own  business. 

After  quoting  from  some  authorities  on  the  doctrine  of  the  law 
in  restraint  of  trade,  the  court  goes  on  to  say: 

"  While  these  parties  were  in  business  in  competition  with  each 
other,  they  had  the  undoubted  right  to  establish  their  own  rates  for 
grain  stored  and  commission  for  shipment  and  sale.  They  could 
pay  as  high  or  low  a  price  for  grain  as  they  saw  proper  and  as  they 
could  make  contracts  with  the  producer.  So  long  as  competition 
was  free,  the  interest  of  the  public  was  safe.  The  loss  of  trade,  in 
connection,  with  the  rigor  of  competition,  was  all  the  guaranty  the 
public  required;  but  the  secret  combination  created  by  the  contract 
destroyed  all  competition  and  created  a  monopoly  against  which 
the  public  interest  had  no  protection." 

They  would  not  allow  an  account  between  the  parties  to  settle 
as  to  what  had  been  done  under  that;  so  sustaining  both  the  Penn- 
sylvania case  and  the  New  York  case  as  to  the  effect  of  the  illegal- 
ity of  a  contract  upon  past  transactions. 

The  case  deserves  special  consideration  in  its  application  to  the 
one  at  bar,  for  the  reason  that  it  is  entirely  similar  to  it  in  respect 
to  one  of  the  most  marked  and  significant  features,  and  that  is 
as  to  the  manner  in  which  the  parties  operated  under  the  contract, 
under  the  joint  injunction  of  secrecy.  Here,  as  there,  the  Standard 
Oil  Company  and  the  firm  of  Scofield,  Shurmer  &  Teagle  had  been, 
prior  to  the  twentieth  day  of  July,  1876,  engaged  for  itself  in  this 
business  of  refining  oil,  independently,  separately,  adversely,  in 
rivalry,  in  competition  with  each  other,  each  one  seeking  to  advance 
its  own  interests  in  its  own  way,  according  to  its  own  judgment,  and 


STANDARD  OIL  COMPANY  CASE.  491 

applying  to  its  own  business  all  the  resources  of  its  own  capital, 
intelligence  and  energy. 

Now,  they  make  this  contract,  and  the  first  stipulation  in  it  is 
that  it  shall  be  kept  secret  from  the  public;  that  each  of  the  two 
parties  shall  continue  to  march  and  fight  under  its  own  flag  as 
before;  that  they  shall  not  appear  to  have  ceased  competition  each 
with  the  other;  but,  on  the  other  hand,  that  they  shall  appear  to 
the  public  to  be  actively  engaged  in  the  ordinary  competition 
which  always  rules  between  persons  engage  in  the  same  business. 
More  than  that,  special  and  particular  methods  were  adopted  for 
preserving  their  secret.  A  false  account  was  opened  on  the  books 
of  these  defendants  in  order  to  conceal  the  nature  and  origin  of  the 
transaction  from  their  own  bookkeeper  and  all  their  agents  and 
employes;  and  in  the  name  of  that  account,  false  and  fictitious 
checks  were  drawn,  bills  were  made  out  and  balances  struck.  And 
more,  that  in  order  that  the  correspondence  of  the  parties  should 
not  be  known  even  to  those  who  might  casually  open  letters 
addressed  to  the  firm,  or  might  be  authorized  to  do  it,  a  particular 
postoffice  box  was  hired  in  a  false  and  fictitious  name,  and  to  that 
name  were  addressed  all  communications  from  the  Standard  Oil 
Company  on  the  subject  of  the  operations,  deposited  in  that  post- 
office  box  and  taken  out  only  by  those  who  were  in  the  secret,  and 
who  were  bound  to  keep  it.  Why  was  this,  if  his  was  a  legitimate 
contract,  if  it  was  up  to  the  ordinary  course  of  business,  if  it  was 
done  for  the  promotion  of  a  useful  and  honest  purpose  consistent 
with  the  public  interest?  Why  was  all  this  veil  of  secrecy  so 
closely  drawn  on  every  transaction  involved  in  the  operation  of 
the  parties?  I  can  understand  why  any  business  house  should 
desire  chat  its  transactions  and  operations  should  not  be  made  pub- 
lic property.  I  can  understand  that  the  communications  between 
partners  and  between  the  heads  of  a  business  house  and  their 
employes,  their  clerks,  their  agents,  their  bookkeepers  are  confi- 
dential— because  there  are  matters  of  privacy  that  are  attendant 
upon  the  transaction  of  any  business  which  those  conducting  the 
business  have  a  right  to  conceal.  But  this  was  to  conceal  a  trans- 
action from  people  who,  if  it  had  been  done  in  the  ordinary  course 
of  business,  would  necessarily  have  known  of  it.  This  was  out  of 
the  ordinary  course  of  business.  Here  was  something  done,  not 
for  the  legitimate  protection  of  the  interests  of  the  parties,  consid- 
ering those  interests  in  the  light  of  a  part  of  the  public  interests, 
but  it  was  a  device  for  the  purpose  of  deceiving  the  public,  of 
making  the  people,  who  were  the  customers  of  these  parties,  believe 
that  they  were  dealing  with  men  who  were  themselves  dealing  with 


492  MODERN  JURY  TRIALS. 

each  other  at  arm's  length;  who  were  opposed  in  interest  by  the 
principle  and  operation  of  the  law  of  compensation;  who  were 
rivals  in  business;  who  were  hostile  in  trade,  instead  of  being  com- 
bined and  confederated  together  as  they  were  under  the  bonds  of 
this  contract,  kept  secret  in  this  way,  and  wherein  it  was  provided 
that  the  amount  of  production  was  to  be  limited  in  order  that  one 
party  might  be  able  to  dictate  a  profitable  rate  in  the  market,  and 
so  control  the  price  of  an  article  of  "prime  necessity."  Therefore 
this  contract  comes  under  the  condemnation  of  the  Supreme  Court 
of  the  state  of  Illinois,  in  the  case  which  I  have  just  read,  on  the 
ground  of  its  being  a  secret  combination  to  do,  in  that  case,  what 
they  might  lawfully  have  done;  for  if  all  the  grain  dealers  in  the 
town  of  Rochelle  had  met  every  morning  and  agreed  that  for  that 
day  they  would  sell  their  grain  at  such  and  such  prices,  they  might 
have  gone  on  and  sold  and  the  transaction  would  have  been  legiti 
mate;  but  they  could  not  make  a  bargain  to  bind  themselves  so 
that  no  one  dealer  could  withdraw  whenever,  in  his  judgment,  his 
own  interest  or  that  of  the  public  dictated  that  he  should.  Mer- 
chants do  congregate  day  by  day  at  places  of  public  exchange,  and 
there  they  do  fix  the  market  price  for  the  day  of  their  articles;  but 
any  man  has  the  right  to  sell  above  the  market  price,  if  he  can  find 
any  one  to  buy,  and  he  has  the  right  to  sell  below  the  market  price 
if  he  chooses  to  do  so;  and,  although  he  may  agree  with  all  his 
brethren  in  the  business  not  to  sell  either  above  or  below,  it  is 
a  bargain  from  which  he  has  a  right  to  recede  and  his  consent  to 
which  he  may  retract  at  any  time,  induced  either  by  considera- 
tions of  his  private  interests,  or  by  any  other  motive  that  he  may 
choose  to  permit  to  govern  him. 

******** 

It  may  be  said  this  is  not  a  partnership.  It  says  on  its  face  that 
they  are  not  to  be  partners,  that  it  is  a  joint  agreement.  If  your 
honor  please,  calling  a  thing  by  a  name  does  not  make  it  a  thing 
other  than  it  is.  Whether  or  not  it  is  a  partnership  depends  upon 
the  actual  relation  of  the  parties  as  established  by  the  contract,  and 
not  upon  what  they  choose  to  name  it.  But  if  it  is  not  a  partner- 
ship, then  no  argument  can  be  drawn  from  the  fact  of  a  partner- 
ship against  the  contract  as  being  one  in  restraint  of  trade.  If  it 
is  a  partnership,  then  it  is  equally  open  to  the  same  objection,  for 
the  reason  that  the  restraint  is  not  imposed  upon  the  party  for  the 
benefit  of  the  mutual  and  joint  interests  which  are  consecrated  by 
the  agreement  itself  created.  *  *  *  * 

And  now,  if  your  honor  please,  it  only  remains  for  me  to  sum 
up  the  substance  of  the  points  on  which  I  rely.  I  say,  that  on  the 


STANDARD  OIL  COMPANY  CASE.  493 

supposition  that  this  agreement  is  a  valid  agreement  at  all,  an 
injunction  will  not  be  granted  to  enforce  the  specific  performance 
or  to  prevent  a  breach  of  the  covenant  in  restraint  of  trade,  which 
is  here  alleged  as  the  ground  of  the  action  ;  because,  in  the  first 
place,  the  contract  itself  is  such  a  one  as  a  court  of  equity  will 
not  countenance  and  favor,  because  it  is  hard,  oppressive,  unequal, 
unjust  and  unfair,  as  between  the  parties  to  it ;  because,  in  the 
second  place,  it  requires  the  supervision  of  the  court  to  be  exer- 
cised over  the  personal  conduct  of  the  parties  ;  for  the  court  will 
not  execute  it  in  part  and  leave  it  at  large  in  part  ;  they  will  not, 
for  the  benefit  of  one  party,  enforce  specifically  the  execution  of 
one  part  of  the  agreement  when  they  see  from  the  terms  and  tenor 
of  the  rest  of  the  agreement  that  it  is  incapable  of  being  enforced 
as  against  them,  requiring  the  court  constantly  to  intervene  for 
the  purpose  of  controlling  and  regulating  the  personal  conduct  of 
the  parties  who  have  upon  them  the  execution  of  the  agreement ; 
because,  in  the  third  place,  the  damages  which  may  be  recovered 
at  law,  if  the  contract  be  valid,  are  a  complete,  full  and  perfect 
satisfaction  for  the  injury  complained  of,  which  can  be  arrived  at 
by  a  mere  arithmetical  computation  on  the  whole  profit  of  the 
excess  which  it  is  forbidden  by  the  contract  to  produce  ;  because, 
in  the  next  place,  there  is  another  adequate  remedy,  and  one  which 
the  parties  have  supplied,  and  that  is  a  termination  of  the  contract 
by  the  voluntary  act  of  the  parties  themselves. 

In  other  words,  they  are  asking  your  honor  to  enter  a  judgment 
against  us  in  advance  of  the  trial  of  the  case.  Now,  where  an 
injunction  is  sought  in  a  preliminary  stage  of  litigation  for  the 
purpose  of  preserving  the  status  in  quo,  of  protecting  property 
which  might  be  wasted,  of  preventing  the  commission  of  some  act 
of  irreparable  damage  and  injury,  I  can  understand  why  it  is 
made — in  order  to  preserve  in  existence  the  subject-matter  out  of 
which  the  rights  ultimately  to  be  adjudged  grow.  But  where  the 
object  of  the  application  is  to  obtain  only  that,  and  that  altogether, 
which  constitutes  the  very  essence  and  scope  of  the  entire  judg- 
ment finally  to  be  rendered,  it  seems  to  me  that  the  court  ought  to 
withhold  its  discretion  in  the  granting  of  such  an  injunction,  except 
in  a  case  where  it  can  see  in  advance  that  it  must  ultimately  decide 
the  case  on  its  merits  in  the  same  way  and  on  the  same  side.  If 
your  honor  entertains  a  reasonable  legal  doubt  as  to  what  will  be 
the  ultimate  issue  on  the  trial  of  the  case  upon  its  merits,  then  I 
say  it  would  be  a  harsh,  a  very  hard  thing  to  stop  the  business  of 
these  defendants  in  the  interim,  and  to  require  them  to  suspend 
their  operations  and  put  an  end  to  their  manufacturing  in  the  mean- 


494  MODERN  JURY  TRIALS. 

time,  until  it  might  finally  be  decided  whether  or  not  they  would 
have  the  right   to  go  on.     They  are  the  parties,  then,  that  might 
complain   of  the   irremediable   injury  which   no  recovery   on   an 
injunction  bond  would  adequately  compensate. 
He  prevailed. 


THE    PAGE    IMPEACHMENT    CASE. 

In  the  Senate  of  Minnesota,  1878. 

The  very  elaborate  and  interesting  argument  of  facts,  and  able 
and  ingenious  exposition  of  law,  in  this  class  of  cases,  has  seldom 
been  handled  in  a  more  logical,  convincing  and  entertaining  man- 
ner, than  was  this  case  by  ex-Governer  Davis,  of  St.  Paul,  Minn. 

The  impeachment  trial  of  Judge  Sherman  Page  of  the  tenth 
judicial  district,  occurred  just  after  the  riots  of  Pittsburgh  and 
other  cities,  when  the  public  interest  in  such  facts  was  at  a  high 
pitch.  Gov.  Davis  has  embodied  an  exhaustive  and  masterly 
review  of  the  whole  range  of  precedents  in  a  novel  and  eloquent 
appeal  to  the  common  sense  of  the  Senate,  as  well  as  an  able 
defense  of  judicial  dignity.  The  speech  in  full  covers  113  pages, 
but  published  separately  for  such  as  require  more  than  is  here 
reported  in  brief. 

Full  extracts  of  each  department  are  given,  to  enable  the  reader 
to  follow  the  facts  and  digest  them  as  they  appear  through  the 
argument.  It  will  be  observed  that  the  Judge  deals  in  all  varieties 
of  illustrative  stories,  epigrams,  and  happy  periods,  that  kept  the 
senate  often  in  laughter  and  always  in  excellent  humor.  As  a  legal 
argument  it  is  unique,  for  the  resting  places  are  set,  like  mile-posts, 
all  along  the  road  of  his  reasoning. 

SPEECH  OP  EX-GOVEBNOB  DAVIS  FOB  BESPONDENT. 

GENTLEMEN  OP  THE  SENATE  : 

The  articles  of  impeachment  exhibited  by  the  House  of  Repre- 
of  the  State  of  Minnesota  against  the  respondent,  have  been  fully 
heard  upon  the  proofs.  All  incidental  questions  have  been  set  for- 
ever at  rest,  and  have  passed  into  precedents  which  will  survive 
every  person  who  witnesses  this  solemn  proceeding.  The  clamor- 


PAGE  IMPEACHMENT  CASE.  495 

ons  voices  of  comment  are  hushed,  the  myrmidons  of  hatred  are 
now  awed  into  expectant  silence,  the  voice  of  affection  has  died 
away  into  silent  and  secret  prayers  to  the  God  of  justice,  at  this 
moment,  when  prosecutors  and  accused,  friends  and  foes,  stand  in 
the  presence  of  the  law,  whose  embodiment  you  are,  to  hear  her 
final  words.  This  is  the  moment  when  counsel  assume  the  exercise 
of  sacred  functions.  The  strategy  of  this  contest  has  done  its 
work,  and  he  who  yesterday  was  rightfully  contending  with  every 
weapon  which  he  could  draw  from  the  arsenal  of  offense  or  defense, 
is  now  consecrated  to  the  duty  of  guiding  blindfold  justice  along 
the  sacred  way.  I  pause  before  the  task  ;  would  that  it  were  in 
stronger  hands  than  mine  ! 

The  power  of  the  state,  when  concentrated  against  an  individual, 
is  of  almost  resistless  efficacy.  The  condemnatory  forces  of  society 
converge  upon  him  in  every  open,  in  every  occult  form.  This  is 
true,  even,  in  prosecutions  for  minor  offenses,  where  the  person  is 
accused  and  tried  by  a  social  fragment  of  that  great  aggregation 
which  we  call  the  state.  Even  in  such  cases  modern  civilization 
has  inherited  some  of  the  reproaches  of  darker  times.  The  citizen 
who  falls  into  the  clutches  of  an  indictment  finds  it  hard  to  restore 
himself  to  the  place  from  which  it  drags  him.  Consummate  legal 
ability  arrays  itself  against  him.  The  executive  officers  of  the  law 
are  his  antagonists.  The  limitless  resources  of  the  public  treasury 
subsidize  his  prosecutors.  The  active  hostility  or  the  cold  aversion 
of  his  fellow  citizens  breaks  down  his  courage.  The  law  which 
confronts  him  as  his  opponent,  out  of  its  omnipotence  listens  lan- 
guidly before  it  strikes  a  few  cold,  defensive  maxims,  often  of 
as  little  efficacy  as  a  Tartar's  windmill  prayer.  But  aided  by 
them  he  is  not  wholly  defenseless.  Revered  principles  which  are 
without  beginning  of  days  in  the  law  speak  with  peremptory  voice 
in  the  assertion  of  certain  constitutional  rights  which  are  his,  and 
which  no  court  can  take  away.  They  ordain  that  he  shall  be  tried 
under  salutary  forms  ;  that  he  shall  be  informed  of  the  nature  and 
cause  of  what  he  is  accused;  that  he  shall  be  presumed  innocent  until 
the  proof  that  he  is  guilty  seals  up  every  avenue  of  presumption 
that  he  is  innocent.  Such  principles  as  these  walk  with  him 
through  the  fiery  furnace  of  his  trial  like  inseparable  angels  of 
deliverance. 

But  in  proceedings  like  this  we  have  been  most  feelingly  admon- 
ished that  many  of  these  safeguards,  inadequate  as  they  often  are, 
are  not  for  this  respondent.  Counsel  have  invoked  into  this  trial 
the  clamor  of  the  newspapers.  Counsel  have  appealed  to  the 
result  of  elections  in  a  county  whose  turbulence  now  finds  its  last 


496  MODERN  JURY  TRIALS. 

disreputable  expression  on  the  floor  of  this  Senate.  We  have  been 
informed  that  this  is  a  political  issue.  This  court  has  put  us  to 
the  ordeal  of  accusations  which  do  not  accuse,  made  by  accusers 
who  have  no  rightful  power  of  accusation.  The  respondent  has 
been  compelled  to  defend  himself  against  charges  of-  which  the 
House  has  absolved  him,  and  against  other  charges  which  that  body 
never  saw.  With  some  acts  he  has  been  accused  by  the  House  ; 
with  others  he  has  been  charged  by  the  accusation  of  those  who 
have  no  more  power  to  do  what  they  have  done  than  they  have  to 
break  the  apocalyptic  seals. 

He  has  been  compelled  to  defend  at  once  himself  and  the  consti- 
tution itself  which  has  been  assailed  in  his  person,  and  to  be  the 
victim  of  a  paradox  which  will  be  a  puzzle  to  after-times.  The 
men  of  years  to  come  will  ask  when  it  was  that  constitutional  safe- 
guards so  vital  and  so  plain  were  overthrown  ;  antiquarians  will 
quarrel  over  the  issue  whether  and  when  the  House  of  Representa- 
tives as  an  impeaching  body  ceased  to  exist,  and  when  its  functions 
were  merged  in  a  select  body  of  usurpers  turned  managers. 

In  ordinary  cases  a  person  accused  of  crime  finds  the  legal  ele- 
ments of  his  defense  in  the  statutes  and  the  text-books  in  which 
it  is  defined,  and  it  is  the  duty  of  the  public  prosecutor  to  bring 
him  clearly  and  entirely  within  the  limits  of  those  definitions. 
But  we  are  told  that  the  respondent  is  to  be  tried  for  crimes  which 
are  nowhere  defined,  which  no  statute  has  declared,  upon  which  no 
text -writer  has  commented.  He  is  accused  of  breaches  of  taste 
and  decorum  ;  he  is  on  trial  for  acts  which  society  may  visit  with 
social  censure,  yet  over  which  no  court  from  the  highest  to  the 
lowest,  excepting  this,  has  ever  yet  coveted  or  had  jurisdiction. 

Standing  here  for  a  judge  thus  assailed,  defending  the  constitu- 
tion thus  attacked,  striving  to  replace  precedents  thus  rudely 
pushed  from  their  pedestals  by  the  iconoclastic  rage  of  the  real 
prosecutors  of  this  judge,  I  do  not  regard  myself  as  speaking  on 
this  day  for  my  client  alone.  Momentous  and  far-reaching  as  the 
consequences  of  this  prosecution  have  been  and  may  be  to  him,  the 
effect  of  this  proceeding  to  my  mind,  goes  far  beyond  him  and 
embraces  persons  other  than  he.  I  speak  to-day  for  the  judicial 
office  ;  I  speak  to-day  for  the  integrity  and  independence  of  th«? 
judicial  department  of  this  government.  It  will  be  my  endeavor 
on  this  great  occasion  to  ward  off  from  that  department  the  pro- 
faning hands  which  have  been  so  rudely  laid  upon  it. 

I  have  been  bred  and  brought  up  to  regard  that  department  aa 
sacred.  The  philosophy  of  our  institutions  has  placed  it  in  theory 
above  the  influence  of  popular  faction,  clamor  and  distrust.  Con- 


PAGE  IMPEACHMENT  CASE  497 

sider  for  a  moment,  Senators,  the  position  in  which  a  person  placed 
in  the  office  of  a  judge  finds  himself.  No  matter  how  active  his 
temperament  may  be,  no  matter  how  decisive  his  executive  ability^ 
no  matter  how  clear  his  convictions  as  to  what  ought  or  ought  not 
to  be  in  the  community  in  which  he  lives,  yet  by  public  sentiment 
he  is  sequestered  and  set  aside  from  interference  with  very  many 
of  the  concerns  of  daily  civic  life.  He  becomes  a  legal  monk  as  to 
secular  affairs.  If  he  is  assaulted  in  person  or  character,  it  is  gen- 
erally deemed  unseemly  for  him  to  resent ;  if  he  complains  he  is 
liable  to  the  imputation  of  mingling  in  concerns  from  which  his 
office  should  absolve  him.  If  he  is  assailed  upon  the  very  seat  of 
judgment  by  acts  which  derogate  from  the  majesty  of  the  law  and 
the  dignity  thereof  which  he  represents,  this  proceeding  demon- 
strates that  any  effort  which  he  may  make  to  protect  that  which 
society  holds  most  sacred,  is  to  be  deemed  a  criminal  act  and  a 
cause  of  impeachment. 

How  naturally  we  appeal  to  that  embodied  conscience  of  states  ! 
When  all  else  seems  to  be  going  to  wreck  and  chaos,  to  what  do 
men  turn  ?  To  the  judiciary.  There  is  that,  men  say,  which 
administers  the  law  of  abstract  right;  there  is  that,  which,  if  any- 
thing can,  will  save  us.  Only  a  short  time  ago,  when  this  nation 
hung  trembling  upon  the  verge  of  revolution  and  dissolution,  when 
the  will  of  the  people  as  expressed  at  the  polls  in  a  presidential 
election  was  doubtful  in  its  results;  when  accusations  of  fraud  were 
exchanged  from  all  sides;  when  the  premonitory  roar  of  enraged 
parties  was  threatening  anarchy;  when  Congress  seemed  power- 
less, and  the  term  of  a  President  was  about  to  expire;  when  all  was 
ancertainty;  when  business  languished,  and  every  patriotic  heart 
almost  ceased  to  beat  in  the  presence  of  a  great  wrong  threatening 
a  great  danger,  the  American  people,  by  an  instinctive  effort,  not 
made  within  the  limits  of  any  strict  construction  of  our  constitu- 
tion, organized  a  tribunal  to  settle  that  great  controversy,  and  in  a 
moment  the  proud  waves  of  revolution  were  stayed,  and  the  light 
of  peace  poured  like  a  sun-burst  over  the  darkened  land.  *  *  * 

I  desire  to  be  further  heard  for  a  moment  upon  the  correct  con- 
struction of  this  phrase,  "  corrupt  conduct  in  office."  Of  course  I 
do  not  intend  to  argue  here,  I  could  not  do  it  with  any  assurance, 
that  the  words  "  corrupt  conduct  in  office  "  as  used  in  the  constitu- 
tion do  not  mean  every  kind  of  corruption.  That  is  not  the  mean- 
ing. A  man  may  be  corrupt  in  his  office  in  many  senses  outside 
pecuniary  corruption.  It  means  corrupt  intention  in  the  execution 
of  official  duties.  It  means  not  only  doing  wrong,  but  it  means 
doing  wrong  wickedly  intending  to  do  wrong.  If  a  magistral* 
32 


498  MODERN  JURY  TRIAL8. 

does  wrong  thinking  that  he  is  doing  right,  he  is  protected  in  what 
he  does  by  every  law  which  the  wit  of  man  has  ever  enacted.  If 
he  does  right,  why  of  course  the  question  of  intent  is  wholly  imma- 
terial. 

Judges  may  be  punished  by  impeachment,  but  it  must  be  for 
oppression  and  tyrannical  partiality  in  the  administration  and  under 
color  of  their  office.  (4  Blackstone,  p.  141.) 

The  only  occasion  upon  which  the  legislature  is  authorized  to  lay 
its  hands  upon  the  judiciary  or  on  the  executive,  is  when  a  mem- 
ber of  either  of  those  departments  has  committed  a  crime  or  misde- 
meanor, or  has  been  corrupt  in  office.  Was  not  that  language  used 
thus  guardedly  because  the  legislature  had  just  adopted  a  provision 
that  these  departments  shall  be  independent,  and  that  no  member 
of  one  shall  infringe  upon  the  functions  of  the  other  ?  But  if  this 
doctrine  which  you  are  asked  solemnly  to  write  in  a  book,  and  give 
down  to  recorded  time,  is  true,  then  I  say  that  the  executive  and 
the  judiciary  are  at  the  mercy  of  the  legislative  department  of  this 
government.  For  if  it  is  true  that  this  is  a  great  political  inquisi- 
tion, that  its  object  is,  and  only  is,  to  get  rid  of  somebody  who  is 
not  liked,  or  of  some  one  who  has  been  guilty  of  a  breach  of 
decorum,  who  confessedly  has  committed  no  crime,  then  I  say  no 
reins  can  be  put  to  the  unbridled  audacity  of  any  House  of  Repre- 
sentatives which  may  accuse,  or  any  Senate  which  may  convict. 
With  the  observance  of  the  construction  which  I  have  advocated, 
the  way  is  clear,  and  easy.  The  governor  sits  securely  in  his  seat 
of  office;  the  judges  sit  securely  upon  the  bench  of  judgment;  they 
are  impregnable.  *  *  * 

This  is  the  settled  law : 

"That  judges  and  jurors  do  nothing  carelessly  and  maliciously; 
that  the  decisions  of  courts  of  competent  jurisdiction  are  well 
founded,  and  their  judgments  regular  and  legitimate;  and  that 
facts,  without  proof  of  which  the  verdict  could  not  have  been  found, 
were  proved  at  the  trial.** 

Therefore  it  is  not  necessary  for  this  respondent  in  regard  to  any 
of  these  charges  by  which  it  is  alleged  that  he  has  made  a  mistake, 
and  because  he  has  made  a  mistake,  that  therefore  it  may  be 
inferred  that  he  is  criminal,  to  enter  into  an  elaborate  defense  in 
advance  to  show  that  he  was  right.  These  records  which  have 
been  produced  here  of  proceeding  after  proceeding,  jurisdiction 
once  being  conceded  or  proved,  stand  enveloped  in  the  presump- 
tion that  the  decision  which  was  made  upon  them  was  right.  And 
I  might  say  here,  for  fear  I  shall  forget  it  in  a  more  proper  connec- 
tion, that  the  presumption  is  much  strengthened  in  this  case  by  the 


PAGE  IMPEACHMENT  CASE.  499 

fact  that  none  of  these  records  wherein  he  is  alleged  to  have  erred, 
were  ever  removed  from  his  court  to  a  court  of  final  revision. 
Stimson  has  never  taken  up  any  of  the  records,  there  was  no  cer- 
tiorari  made  on  that  order  of  the  judge  that  Stimson  should  pay 
the  fees  into  court.  The  Riley  case  was  never  appealed.  There 
was  no  appeal,  and  hence  the  presumption  becomes  stronger. 

*  *  *  *  *  *  * 

Our  fathers  well  knew  that  the  man  who  is  accused  of  crime 
fights  with  society  banded  against  him.  It  is  a  matter  of  common 
observation  that  that  is  so.  Friends  fall  off,  resources  fail,  the 
public  print  may  be  full  of  exaggerated  statements  against  him, 
there  exists  that  universal  feeling  of  distrust  which  leads  us  all  to 
avoid  a  man  who  is  accused.  Hence  sprang  up  that  merciful 
maxim  that  a  person  accused  of  any  offense,  be  it  high  or  low,  is 
conclusively  presumed  to  be  innocent  until  he  is  proved  guilty  by 
such  a  weight  of  evidence  as  shuts  the  avenue  of  every  presumption 
in  his  favor.  He  must  be  proved  guilty  beyond  a  reasonable  doubt, 
beyond  the  last  reasonable  doubt  which  can  arise  in  the  mind  of  any 
rational  person  considering  the  case.  Doubt,  not  only  as  to  the 
act,  doubt,  not  only  as  to  the  intent,  but  doubt  as  to  the  motive, 
doubt  as  to  each  element  of  the  act.  And  if,  after  hearing  all  this 
testimony — even  supposing  and  conceding,  for  the  purposes  of  this 
branch  of  the  discussion  only,  that  there  is  anything  here  which 
calls  for  the  invocation  of  that  maxim — if  there  should  be  in  the 
minds  of  any  of  you,  after  this  discussion  has  closed,  a  doubt  made 
apparent  by  a  scintilla  of  reason,  whether  this  respondent  did  not 
think  he  was  acting  within  the  duties  of  his  office,  whether  he  was 
not  promoting  the  welfare  and  good  order  of  society,  whether  he 
was  not  subserving  the  cause  of  common  honesty,  whether  he  was 
not  preserving  the  dignity  of  his  office  and  the  law  of  the  state  as 
it  stood  there,  embodied  in  and  administered  by  him;  if  in  your 
minds  there  exists  a  reasonable  doubt  as  to  any  of  these  proposi- 
tions, then  I  say  he  must  go  quit.  Take  your  own  cases,  sitting 
here  as  judges,  sitting  as  senators  in  your  judicial  capacity.  How 
often,  undoubtedly,  during  this  trial,  must  have  occurred  to  you 
grave  questions  weighing  solemnly  and  heavily  upon  your  con- 
sciences. Some  of  you  may  have  some  prejudices  against  this 
respondent,  and  are  striving  with  them  yet;  some  of  you  may 
have  some  prejudices  in  favor  of  this  respondent,  and  are  striv- 
ing with  them  yet.  But  under  the  circumstances,  gentlemen, 
can  you  not  appeal  to  your  own  consciences,  and  say:  "If  I  do 
the  best  I  can  with  the  lights  which  I  have,  and  with  the  infirmi- 
ties with  which  Almighty  God  has  laden  me,  He  will  not  hold 


600  MODERN  JURY  TRIALS. 

me  responsible,  nor  can  society  ? "  He  who  is  made  a  judge 
is  not  by  that  act  translated  into  perfection.  He  goes  to  the  bench 
with  the  same  infirmities  that  he  had  in  the  walks  of  daily  life. 
He  struggles  against  them,  as  you  here  must  struggle  against  them, 
and  as  you  must  in  other  capacities,  if  you  do  your  duty.  Your 
constituents  knew  what  kind  of  men  you  were  when  they  sent  you 
here.  His  constituents  knew  what  kind  of  a  man  he  was  when 
they  elected  him  to  be  their  judge.  Nearly  six  years  of  his  term 
have  rolled  around.  That  he  has  administered  justice  impartially 
between  man  and  man,  is  not  denied.  His  bitterest  enemies  come 
here  and  say  that  when  he  holds  the  scales  of  justice,  their  preju- 
diced eye  cannot  see  that  it  turns  a  hair.  What  private  suitor  is 
here,  man  or  woman,  to  claim  that  he  ever  has  removed  the  land- 
marks of  property  or  decided  wrongfully  in  a  case  which  involved 
private  rights?  All  these  cases  wherewith  he  is  accused,  are  where 
he  has  acted  for  the  state  of  Minnesota  in  his  public  capacity 
against  transgressors.  His  hand  is  as  clean  as  an  angel's  of  bribery. 
It  is  not  pretended  that  he  is  not  the  justest  man  that  sits  upon  any 
bench  in  this  state.  I  say,  therefore,  that  his  counsel  have  a  right 
to  envelope  him  in  the  presumptions,  first,  that  he  has  decided 
legally,  and,  secondly,  to  ask  you  to  give  to  him  to  an  extent  never 
given  before  to  any  person  accused,  the  benefit  of  that  other  pre- 
sumption— that  until  he  is  clearly  proven  guilty,  until  he  is  clearly 
shown  to  be  a  criminal  in  the  very  worst  and  lowest  sense,  he  is  not 
amenable  to  the  extreme  penalty  which  the  constitution  of  this 
state  pronounces  upon  persons  in  his  situation  declared  to  be  guilty. 
It  is  a  matter  of  common  history  that  that  was  a  time  when  the 
public  mind  was  peculiarly  feverish  and  susceptible  upon  the  sub- 
ject, whether  the  railroad  corporations  of  this  state  and  throughout 
the  country  had  not  acquired  such  a  dominant  position  over  public 
affairs  and  public  men,  as  rendered  their  existence  exceedingly 
dangerous  to  the  body  politic  unless  restraints  were  put  upon  them. 
At  that  time  no  more  dangerous  charge  could  have  been  made 
against  a  public  man — no  more  heinous  charge  could  have  been 
made  against  any  judge,  than,  at  that  moment,  when  not  only  this 
state,  but  the  entire  community  of  the  Union  was  lying  in  a  sense 
of  apprehended  danger  from  the  encroachment  of  bodies  politic 
upon  the  rights  of  the  people,  to  accuse  him  of  corrupt  alliances 
with,  or  corrupt  decisions  made  in  favor  of  a  railroad  corporation. 
Accordingly,  shortly  after  Judge  Page  took  his  seat  upon  the 
bench,  we  find  that  this  man  Mollison,  apparently  without  any  pro- 
vocation, appears  in  print,  in  a  public  journal,  printed  in  the  city 
of  Austin,  wherein  were  set  out  the  nauseous  details  of  that  libel, 


PAGE  DIPEACHMENT  CASE.  601 

accusing  this  respondent  of  "  plowing  with  the  railroad  heifers,*1 
with  corruptly  deciding  in  favor  of  the  railroad,  a  certain  question 
in  regard  to  taxes,  by  which,  as  the  libel  said,  $50,000  would  be  lost 
to  the  county  of  Mower.  That  was  the  libel;  that  was  the  charge 
made  against  this  untried  magistrate — a  man  scarcely  firm  in  his 
seat — of  making  a  decision  which,  in  the  slow  progress  of  the 
administration  of  justice,  the  Supreme  Court  of  this  state,  some 
four  years  afterwards,  affirmed.  That  there  was  any  excuse  or 
vindication  for  this  libel,  no  man  has  arisen  in  his  place  with  hardi- 
hood enough  to  affirm.  That  it  was  an  atrocious  lie  was  demon- 
strated by  the  abject  retraction,  which  was  afterwards  published. 
That  it  was  malicious,  speaks  trumpet-tongued  from  every  line  of 
it;  that  it  was  intended  to  break  down  this  respondent  and  destroy 
his  usefulness  in  the  inception  of  his  judicial  career,  will,  I  think, 
be  made  abundantly  manifest  before  I  close  my  argument  upon 
another  branch  of  this  particular  case.  Mr.  Mollison  was  arrested, 
and  it  is  in  proof  by  the  officer  who  arrested  him,  that  when  he 
took  him  into  his  custody,  informing  him  of  that  for  which  he  was 
detained,  instead  of  expressing  any  surprise  or  any  contrition  for 
his  crime,  he  threatened  to  do  just  as  he  did  afterwards  in  that 
court  room  to  " make  his  tongue  ring"  against  the  respondent. 
Mollison  is  brought  into  court.  He  is  arraigned  at  the  bar.  Any 
man  with  the  least  impulse  towards  decency  would  have  acted  dif- 
ferently. The  district  attorney  read  the  indictment;  Mollison  was 
listening,  and  when  the  officer  arrived  at  that  part  of  the  indict- 
ment which  contained  the  words  in  which  this  malignant  libel  was 
set  out,  this  man  began  to  nod.  The  body  of  the  county  of  Mower 
was  there,  the  grand  jury  was  presumably  present;  the  best  citizens 
in  that  community  were  there  seeing  their  neighbor  enter  upon  the 
yet  unattempted  task  of  his  judicial  position,  and  this  impudent 
and  infamous  libeler,  standing  in  the  presence  of  justice,  instead  of 
behaving  himself  with  a  decorum  which  few  men  are  so  abject  as. 
altogether  to  lose  the  sense  of,  reiterated  his  libel  by  nodding  his 
assent  to  it  when  it  was  read  to  him  for  the  purpose  of  obtaining 

his  plea. 

******** 

Under  my  construction,  the  respondent's  decision  of  the  case  was 
correct.  The  statutes  make  the  judges,  for  certain  purposes,  the 
guardians  of  the  public  treasury.  The  respondent  did  his  duty  in 
vacating  a  stipulation  which  made  an  attack  upon  the  treasury 
under  a  false  statement  of  what  took  place  in  court  and  of  its 
records.  Courts  take  judicial  notice  of  their  records  and  proceed- 
ings. I  do  not  know,  gentlemen  of  the  senate,  what  there  was 


J02  MODERN  JURY  TRIALS. 

wrong  in  the  respondent  going  before  the  commissioners  and  tell- 
ing them,  at  their  request,  what  was  a  fact.  We  all  know  that  in 
outside  districts  much  more  freedom  of  intercourse  exists  between 
the  judges  and  the  citizens  than  perhaps  does  in  the  larger  places. 
How  natural  it  was  for  honest  old  Judge  Felch,  in  the  recess,  when 
a  disputed  question  of  fact  came  up,  to  say,  "  I  will  go  up  to  Judge 
Page's  house  and  have  him  come  down  here,  and  find  out " — not 
what  the  law  is,  but  "  what  the  fact  is."  The  law  was  plain 
enough,  and  there  was  no  dispute  about  it.  I  venture  to  say  that 
there  is  not  a  district  judge  in  this  state  who  is  not  from  time  to 
time  called  upon  by  persons  of  co-ordinate  branches  of  the  govern- 
ment, exercising  their  functions  of  office  to  tell  what  has  taken 
place  in  his  court.  He  generally  does  it  without  objection;  it  is 
done  without  impropriety.  And  when  Judge  Felch  became 
alarmed  at  what  seemed  to  be  a  steal  upon  the  treasury  of  the 
county,  he  went  to  ask  Judge  Page  what  the  fact  was.  The 
respondent  might  have  been  more  circumspect,  he  might  have  been 
more  prudent,  but  he  went  there  in  the  full  consciousness  that  he 
was  doing  nothing  wrong.  And  when  the  fact  was  asked  him,  he 
told  the  commissioners  just  as  he  understood  it  to  be. 

These  indictments,  gentlemen,  were  consequences  of  that  riot, 
which  this  senate  has  solemnly  decided  it  will  know  nothing  about, 
which  took  place  in  the  city  of  Austin  in  1874.  I  stated  there  was 
a  riot  there.  I  have  an  impression  that  something  has  been  said 
about  it  in  this  court.  It  has  been  more  than  darkly  hinted  several 
times  here  that  there  was  a  riot  in  the  city  of  Austin,  and  it 
appears  of  record  here  that  these  men,  Beisicker,  Walsh  and 
another,  were  indicted,  as  among  the  rioters.  They  were  indicted 
at  the  September  term,  1874.  Whether  they  were  arrested  at  that 
term  or  not  my  memory  does  not  serve  me,  but  I  will  venture  the 
assertion  that  the  demurrer  was  put  in  at  the  term  at  which  the 
indictment  was  found. 

The  March  term  of  1875  comes  around,  and  no  notice  having 
been  made,  no  issue  of  fact  joined,  what  do  we  find  ?  We  find 
French  and  Cameron  joining  hands  in  iniquity;  they  make  up  their 
minds  "  to  put  up  a  job  "  on  the  county  treasury,  and  Hall  and  his 
deputy,  Riley,  join  hands  with  them.  Mr.  French,  without  any 
consultation  with  the  court,  took  out  subpoenas  for  the  state,  and 
Mr.  Cameron,  without  any  leave  obtained,  as  would  be  necessary 
in  Judge  Mitchell's  district,  ordered  his  respective  clients  to  take 
out  subpoenas  for  the  defense.  French  takes  out  subpoenas  for  the 
state,  for  the  witnesses  "  to  be  and  appear  and  testify  in  a  certain 
issue  of  fact "  which  had  not  been  formed,  and  Cameron  directs  his 


PAGE  IMPEACHMENT  CASE.  603 

client  to  take  out  subpoenas  for  "  the  within  named  witnesses  to  be 
and  appear  and  testify  concerning  certain  issues  of  fact "  which 
had  not  been  formed  !  This  was  a  double-handed  theft,  and 
how  many  witnesses  Hall  subpoenaed  on  behalf  of  the  state,  God 
only  knows — this  record  don't  show.  But  it  is  a  moral  certainty 
that  that  unregenerate  Riley  subpoenaed  ninety  witnesses  on 
behalf  of  the  defense,  to  appear  and  testify  in  an  issue  which  had 
not  been  formed !  More  than  that :  although  this  matter  was 
depending  upon  a  demurrer,  and  he  had  subpoenaed  ninety  men,  he 
did  not  have  to  go  for  any  of  them  outside  the  corporate  limits  of 
the  city  of  Austin,  and  I  don't  suppose  the  precious  Hall  had  to  go 
any  further  for  his  covey.  It  would  not  be  expected  that  Riley, 
the  deputy,  could  subpoena  more  witnesses  than  Hall,  the  sheriff. 
It  would  be  gross  insubordination  to  do  so,  and  I  take  it  for 
granted  that  Hall  was  not  surpassed  by  his  deputy  in  that  respect. 
And  so  these  ninety  men  are  subpoenaed  to  come  and  testify 
upon  an  issue  of  law !  And  who  do  you  suppose  were  in  those 
subpoenas  ?  Why,  the  very  defendants  themselves  were  sub- 
poenaed as  witnesses  in  their  own  case,  and  Riley  taxes  his  fee 
against  the  county.  And  after  Tom  Riley  had  searched  and  raked 
as  with  a  fine-tooth  comb  the  city  of  Austin  for  witnesses  whom 
Hall  had  not  captured,  he  turns  around  and  subpoenas  himself  I 
Having  performed  that  automatic  feat,  he  naturally  looks  around 
for  other  worlds  to  conquer,  and  it  occurs  to  him  that  there 
still  remain  two  individuals  whom  he  has  not  grasped  within 
the  comprehensive  powers  of  the  subpoenas  which  he  held,  and 
so  he  subpoenas  Cameron  and  Crane,  the  defendant's  attorneys. 
And  I  have  no  doubt  that  Hall  subpoenaed  French. 

Now,  that  is  the  transaction,  gentlemen.  I  am  making  no  mis- 
statements,  no  exaggerations  here.  Those  subpoenas  are  in  this 
court,  those  names  are  on  the  back.  This  is  the  transaction,  in  all  its 
original,  unvarnished  cussedness,  just  exactly  as  I  tell  you.  And 
Judge  Page  is  to  be  impeached,  because,  hating  a  thief — knowing 
one  when  he  sees  him — he  doesn't,  perhaps,  round  all  the  sharp 
corners  of  the  law,  but  cuts  across-lots  after  him  with  a  club  I 

A  conversation  never  can  be  understood  until  the  whole  of  it  is 
given,  and  in  the  intercourse  which  took  place  between  Judge 
Page,  Mr.  Mandeville  and  Mr.  Allen  at  that  bench,  it  is  not  impos- 
sible that  that  question  may  have  been  asked,  "what  work  did  you 
do  for  Mr.  Hall  that  he  should  appoint  you  deputy  ? "  I  don't 
believe  it  ever  did,  but  if  it  did  what  is  there  wrong  ?  What  is 
there  of  judicial  corruption  necessarily  inherent  in  it?  What  is 
there  in  it  worthy  of  being  dignified  by  such  a  prosecution  as  this? 


504  MODERN  JURY  TRIALS. 

If  words  proceeding  from  the  mouth  of  magistrates  or  any 
person,  are  susceptible  of  two  constructions,  one  innocent  and  one 
blameworthy,  not  only  the  law  of  charity  but  the  law  which  is 
administered  in  the  courts,  imputes  to  that  language  the  innocent 
meaning.  Is  there  any  feeling  of  hostility  shown  here  against  Mr. 
Mandeville  or  attempted?  Anything  to  show  that  this  judge  was 
not  acting  magisterially  on  that  occasion  ?  Was  he  reaching  his 
hand  into  the  treasury  to  help  anybody  pilfer  therefrom  ? 

The  statute  imposed  upon  this  respondent  the  duty  of  fixing  the 
per  diem  of  such  deputies  as  the  sheriff  might  appoint  under  his 
order  fixing  the  number.  Mr.  Mandeville  appeared  before  him  as 
a  claimant — he  had  to  decide  it.  Did  he  decide  it  right  or  did  he 
decide  it  wrong  ?  The  duty  was  upon  him  to  decide  that  little 
case ;  the  parties  were  before  him — they  were  heard.  And  upon 
any  theory,  whether  for  prosecution  or  defense,  he  told  Mr.  Man- 
deville that  he  could  not  have  his  pay  because  the  condition  prece- 
dent, which  the  statute  in  guarding  the  public  treasury  had  made 
indispensably  necessary,  had  not  been  performed. 

It  is  a  new  doctrine  that,  if  money  be  paid  in  to  a  sheriff  or  the 
clerk,  and  sheriff  or  clerk  embezzles  it,  the  party  wronged  is  to  be 
driven  to  his  circuitous  action  of  assumpsit  against  a  man  con- 
fessedly a  thief.  Take  our  courts  of  record  in  a  place  like  this — 
there  are  hundreds  of  thousands  of  dollars  on  deposit  in  the  regis- 
try of  courts  for  railroad  condemnations,  or  as  assets  in  bank- 
ruptcy ;  the  officers  of  the  court  have  this  money  ;  they  must 
check  it  out  upon  the  order  of  the  court.  Supposing  that  a  person 
entitled  to  a  sum  under  those  circumstances,  brings  to  the  clerk 
tne  order  of  the  presiding  judge,  and  the  clerk  says,  "I — I — I 
haven't  got  this  money — I — I  have  disbursed  it — I  have  sunk  it.** 
What  in  all  time  have  all  courts  done  with  such  culprits  ?  They 
have  laid  their  hands  immediately  and  heavily  upon  them,  and 
made  them  disgorge  ;  they  have  the  right  to  do  it,  and  it  is  their 
duty  to  do  it. 

Let  any  one  who  has  any  curiosity  remaining  on  that  subject 
step  over  into  the  supreme  court  room  and  ask  for  the  record  in 
the  case  of  Gronlund,  an  attorney  of  that  court.  It  was  charged 
against  him  that  he  had  embezzled  and  refused  to  pay  over  the 
money  of  a  client.  He  was  cited  before  that  tribunal ;  he  made 
his  explanation,  such  as  it  was.  It  was  adjudged  a  high  contempt 
of  the  courts  of  this  state  ;  he  was  ordered  to  refund  it,  and  he 
languished  in  the  jail  of  Ramsey  county  as  a  penalty  for  his  crime. 
There  is  no  trial  by  jury  in  such  cases  ;  none  is  necessary,  the  exi. 
genciea  of  public  justice  do  not  permit  it.  The  supreme  court  of 


PAGE  IMPEACHMENT  CASE.  505 

this  state  did  not  err  in  that  matter  ;  it  is  a  plain  jurisdiction,  given 
by  the  statute  over  all  its  officers,  attorneys  as  well  as  others. 
There  are  two  other  proceedings  of  the  same  character  pending  in 
the  court  to-day  ;  and  there  is  not  a  district  judge  in  this  state, 
who  has  not,  in  the  course  of  his  administration  of  justice,  been 
compelled,  with  a  temperate  yet  firm  hand,  to  execute  the  process 
of  contempt  upon  the  derelict  officers  of  his  court. 

The  respondent  has  made  in  his  answer,  full  and  sufficient  reply 
to  everything  charged  against  him  worthy  of  a  moment's  attention. 
He  avers,  in  the  first  place,  that  he  is  the  judge  of  that  judicial 
district;  he  avers,  in  the  second  place,  that  for  days  there  had  been 
a  riot  in  the  city  of  Austin;  that  danger  to  life  and  property  were 
apprehended;  that  meetings  were  held  in  the  houses  of  citizens  to 
devise  means  for  public  protection;  that  the  streets  of  that  town 
were  guarded  by  patrols;  that  the  sheriff  had  been  inadequate  and 
insufficient  in  the  performance  of  his  duty  when  requested  by  the 
mayor  of  the  city  to  arrest  the  rioters.  The  respondent  also  alleges 
that  while  this  insurrection  against  law  and  order  was  flagrant,  he 
was  called  by  the  duties  of  his  position  from  Austin  to  Preston  to 
hold  a  term  of  court ;  that  the  riot  renewed  or  rather  continued  ; 
that  danger  to  his  family  was  apprehended,  and  he  was  summoned 
by  telegraph,  to  put  into  execution  the  undoubted  powers  which 
inhered  in  him  ;  that  he  did  write  a  letter  to  the  sheriff  of  that 
county — as  I  shall  demonstrate  he  may  have  done,  must  have  done 
and  should  have  done — instructing  him  under  the  right  he  had  to 
instruct  him,  that  he  should  preserve  the  peace  in  manner  and  form 
prescribed  by  the  statutes. 

The  fact  is,  that  this  depu/y  sheriff  went  down  -there,  engaged 
in  a  cow  trade  and  took  a  bribe  from  Mr.  "YVeller  that  he  would 
not  levy  upon  his  cattle  but  that  he  would  give  him  a  chance  to 
sell  a  cow  so  that  he  might  steal  $5.60  out  of  the  proceeds  of  that 
live  stock  transaction.  And  the  respondent  is  to  be  impeached. 

It  was  a  criminal  act  that  Stimson  had  committed.  He  had 
besides  made  himself  civilly  liable  to  three  times  the  amount  which 
he  had  collected.  He  was  an  officer  of  the  court ;  the  process  of 
the  court  had  been  used  in  trading  cows — squeezing  this  $5.60  out 
of  the  county  of  Mower.  It  was  a  flagrant  contempt  of  court. 
The  more  contemptible  because  it  was  so  insignificant  —  a  little, 
dirty  steal  ! 

Was  the  respondent  wrong  in  taking  an  officer  of  his  court  to 
task  for  conducting  the  ministerial  duties  of  his  position  in  that 
manner?  The  grand  jury  investigated  it.  They  made  a  formal 
presentment;  the  court  called  Mr.  Stimson  before  it.  An  investi- 


506  MODERN  JURY  TRIALS. 

gallon  took  place  (as  I  shall  show  in  a  moment  by  an  examination 
of  testimony),  and  Stimson  admitted  every  one  of  the  facts  charged 
without  objection,  exception  or  reservation,  and  as  I  shall  maintain, 
without  asking  any  further  hearing  than  he  had.  Why,  he  waa 
just  like  any  other  little  thief  caught  with  the  money  in -his  hands 
— he  admitted  it  ;  he  was  willing  to  disgorge.  There  sat  the 
grand  jury  before  him — there  was  Mr.  Weller  in  court,  liable  to 
be  imprisoned  again  if  Stimson  was  allowed  to  hold  his  money  in 
this  way.  It  is  only  a  part  and  parcel  of  the  way  these  men  down 
there  in  Mower  county  treat  the  public  treasury.  He  made  no 
objection.  He  was  requested  to  pay  over  the  money  so  that  the 
grand  jury  might  see  the  process  of  deglutition  reversed,  and  he 
walked  up  and  did  it.  Now  who  will  say  that  the  action  of  the 
respondent  was  not  right,  and  morally  right  ?  I  may  admit  that 
he  might  have  traveled  the  technical  zig-zag  of  assumpsit  or  indict- 
ment, but  he  waa  not  bound  to  do  it  in  the  case  of  an  officer  of 
his  court. 

If  my  proposition  is  true  and  my  law  is  right,  this  man  Stimson 
being  a  deputy  sheriff,  had  neglected  his  duties  ;  he  had  been  guilty 
of  embezzlement.  He  had  also  laid  himself  liable  to  damages, 
and  how  was  he  to  be  punished  ?  To  be  punished  summarily — in 
some  cases  having  an  opportunity  to  be  heard.  He  had  such  an 
opportunity.  The  grand  jury  had  made  their  presentment ;  it 
was  read  or  explained  to  this  man  and  he  admitted  it,  as  I  shall 
show  when  I  come  to  examine  the  testimony.  Everything  wa* 
done  that  he  could  have  required  to  give  him  a  hearing. 

This  proceeding  is  as  old  as  the  common  law,  and  has  been  exer- 
cised in  parliamentary  bodies.  Precisely  the  same  principle  waa 
considered  by  the  supreme  court  of  the  United  States  in  the  case 
of  Randall  against  Bingham,  reported  in  the  7th  of  Wallace,  page 
539.  The  grand  jury  in  that  case,  upon  the  strength  of  a  letter 
charged  that  an  attorney  and  counselor  had  been  guilty  of  such  a 
violation  of  his  professional  duties  as  to  induce  the  supreme  court 
of  Massachusetts  to  call  that  gentleman  before  them,  very  much 
as  Judge  Page  called  Mr.  Stimson,  and  it  disbarred  him  after  a 
very  informal  hearing,  and  he  sued  the  justice  who  disbarred  him 
for  damages,  alleging,  as  Stimson  does  here,  that  he  had  no  suffi- 
cient opportunity  to  be  heard — possibly  that  he  had  not  been 
indicted  and  convicted — that  the  law  did  not  in  stately  ceremonial 
reach  him  in  tangled  ways.  The  case  went  through  all  the  courta. 
Here  is  what  the  supreme  court  of  the  United  States  holds  : 

u  The  informality  of  the  notice,  or  of  the  complaint  by  the  let- 
ter, did  not  touch  the  question  of  jurisdiction.  The  plaintiff 


PAGE  IMPEACHMENT  CASE.  507 

understood  from  them  the  nature  of  the  charge  against  him,  and  it 
is  not  pretended  that  the  investigation  which  followed  was  not  con- 
ducted with  entire  fairness.  He  was  afforded  ample  opportunity 
to  explain  the  transaction  and  vindicate  his  conduct.  He  intro- 
duced testimony  upon  the  matter,  and  was  sworn  himself." 

Here  Stimson  admitted  the  act,  just  as  the  grand  jury  charged 
it.  "  It  is  not  necessary  that  proceedings  against  attorneys  for 
malpractice,  or  any  unprofessional  conduct,  should  be  founded 
upon  formal  allegations  against  them.  Such  proceedings  are  often 
instituted  upon  information  developed  in  the  progress  of  a  cause  ; 
or  from  what  the  court  learns  of  the  conduct  of  the  attorney  from 
its  own  observation.  Sometimes  they  are  moved  by  third  parties 
on  affidavit,  and  sometimes  they  are  taken  by  the  court  upon  its 
own  motion."  Such  is  the  opinion  of  the  supreme  court  of  the 
United  States.  That  is  not  only  the  practice  in  all  courts  in  com- 
pelling extortionate  officers  to  give  up  extorted  fees,  but  it  has 
been  the  practice  in  parliamentary  bodies,  and  it  was  once  adopted 
in  a  case  of  a  man  who  will  be  revered  as  long  as  the  English 
language  is  spoken  or  understood.  I  read  from  the  life  of  the 
Earl  of  Nottingham,  on  page  194,  vol.  4,  of  the  Lives  of  the  Lord 
Chancellors  of  England.  John  Milton  was  thrown  into  prison  in 
disturbances  which  followed  the  overthrow  of  the  Commonwealth, 
and  while  he  was  there  some  ancestor  of  Stimson  squeezed  the  poet 
for  fees.  With  the  advent  of  better  times  the  laureate  of  Para- 
dise was  liberated,  and,  having  been  committed  under  an  order 
of  the  Parliament,  the  question  of  restitution  was  brought  up. 
Lord  Campbell  writes  thus: 

"  As  a  lawyer,  I  blush  for  my  order  while  I  mention  Finch's  last 
appearance  in  the  Convention  Parliament.  John  Milton,  already 
the  author  of  'Coinus,'  and  other  poems,  the  most  exquisite  in  the 
language,  after  being  long  detained  in  the  custody  of  the  Sergeant- 
at-arms,  was  released  by  the  order  of  the  House." 

In  2  Bissell,  939,  are  the  words:  "A  party  who  has  been  already 
tried,  may  protect  himself  against  a  subsequent  prosecution  for  the 
same  offense.  He  may  do  so  by  plea;  it  is  a  principle  of  our  law 
that  no  man  shall  be  twice  tried  for  the  same  offense;  if  he  has 
already  been  acquitted  there  is  a  known  legal  form  of  pleading  as 
old  as  the  law  itself,  by  which  he  can  defend  himself.  But  it  is 
settled  by  authorities  coeval  with  the  law  itself." 

Our  statute  provides:  "SECTION  1.  The  judges  of  the  several 
courts  of  record,  in  vacation  within  their  respective  districts,  as  well 


508  MODERN  JURY  TRIALS. 

as  in  open  court,  and  all  justices  of  the  peace,  within  their  respective 
counties,  shall  have  power  to  cause  all  laws  made  for  the  preserva- 
vation  of  the  public  peace  to  be  kept,  and  in  the  execution  of  that 
power,  or  for  good  behavior,  or  both,  in  the  manner  provided  in 
this  chapter." 

Who  are  these  rioters?  Men  who  capture  trains,  rob  homes, 
ravish  women,  murder  citizens,  and  who  are  rapidly,  by  some 
strange  social  elective  process,  taking  unto  themselves  the  forms  of 
belligerent  organizations.  In  our  cities  a  wilder  vagary  has  found 
expression.  That  which  was  formerly  deemed  to  be  an  exotic,  has 
been  discovered  to  be  indigenous,  though  heretofore  dormant  in 
our  soil.  In  Chicago,  in  St.  Louis,  in  New  York,  in  every  consid- 
erable city  of  this  country,  the  horrid  front  of  communism  has  been 
reared.  It  threatens  the  holy  bounds  of  property.  It  has  its 
organization,  its  design,  its  avowed  purposes,  and  bears  to  the 
other  portent  the  relation  of  fire  to  powder.  Only  last  year  the  elec- 
tric thrill  of  one  riot  ran  from  the  sea-board  to  the  Mississippi  river, 
and  palsied  the  great  arteries  of  commerce  in  a  day;  it  sacked  and 
burned  the  mighty  city  of  Pittsburg;  the  great  state  of  Pennsyl- 
vania, with  its  four  millions  of  people,  lay  crushed  in  its  folds,  and 
the  authority  of  the  federal  government  was  powerless  for  a  time. 

With  the  coming  of  the  harvest,  there  will  sweep  over  the  face 
of  this  state,  bands  of  lawless  men,  unarmed  now,  perhaps  to  be 
armed  in  the  future.  From  a  sightly  hill  near  the  farm  of  the 
senator  from  Wabasha  I  venture  to  say  that  in  two  months,  thou- 
sands of  those  men  can  be  counted  c*oming  no  man  knows  whence, 
and  going  no  man  knows  where.  And  I  say  that  in  these  times 
when  such  dangers  are  reasonably  to  be  apprehended,  the  magis- 
trate who  has  the  courage  to  command  the  sheriff  of  his  county  to 
execute  the  law  by  taking  life  if  necessary — to  tell  the  citizens  that 
they  shall  be  protected  in  doing  what  the  law  says  they  may  do — 
deserves  the  plaudits  and  commendations  of  his  fellow  men,  instead 
of  being  arraigned  before  a  court  of  impeachment.  This  charge 
is  a  public  danger,  senators.  A  few  men  like  Sherman  Page  might 
have  saved  the  city  of  Pittsburg  that  day.  There  would  not  at 
least  have  been  that  abject  cowardice,  while  millions  of  property 
and  hundreds  of  lives  went  out  of  existence — and  when  I  see  a 
sickly  sneer  of  incredulity  upon  the  face  of  any  man  who  lives  far 
secluded  from  any  danger  of  that  kind,  it  makes  me  tremble  for 
the  justice  of  this  court. 

This  same  question  arose  in  a  very  interesting  form  in  Ireland. 
In  1823,  when  the  Marquis  of  Wellesley,  I  think,  was  the  Lord 
Lieutenant  of  Ireland,  a  riot  took  place  in  the  theater  of  Dublin. 


PAGE  IMPEACHMENT  CASE.  509 

In  the  course  of  that  riot  the  person  of  the  Lord  Lieutenant  was 
assailed.  Missiles  were  thrown  at  him,  his  life  was  endangered, 
It  was  a  riot  which  grew  out  of  the  feuds  which  have  distracted 
that  island  for  so  many  centuries.  When  the  offense  was  brought 
to  the  attention  of  the  grand  jury,  so  powerful  was  the  influences 
in  favor  of  the  rioters,  that  the  inquest  were  prevailed  upon  to 
report  that  they  found  no  cause  of  indictment,  and  they  threw  out 
the  bill.  The  offense  was  so  clear  and  the  offenders  were  so  well 
known,  that  Mr.  Plunkett,  who  was  then  the  attorney-general,  filed 
an  ex  officio  information,  which  is  equivalent  to  an  indictment,  in 
the  court  of  king's  bench.  Instantly  the  cry  went  up  that  because 
the  rioters  had  just  been  absolved  by  the  grand  jury,  the  attorney- 
general  was  guilty  of  a  grave  violation  of  law  in  seeking  to  bring 
them  before  the  courts  for  trial.  And  upon  that  occasion  Mr. 
Plunkett,  with  great  eloquence  and  great  power  of  thought,  vindi- 
cated himself  before  the  Irish  Court  of  King's  Bench. 

[Here  the  counsel  read  the  case  at  length.  J 

Another  was  a  case  in  Southern  Illinois  where  the  plaintiff  alone 
appeared. 

But  the  case  was  ready  for  trial.  The  other  attorney  was  sharp 
and  eager  to  overreach,  and  the  necessity  of  going  to  trial  before 
the  train  arrived  was  great.  Justice  Davis  told  him  such  was  his 
right,  of  course;  he  could  go  to  trial,  "but,"  said  he,  "  we  had  just 
such  a  case  as  this  down  at  Springfield  the  other  day,  the  other 
lawyers  were  not  there,  and  I  was  obliged  to  try  the  defendant's 
case  for  him,  and,  do  you  believe  it,  we  beat  ?"  I  have  no  doubt 
that  lawyer  thought  that  Justice  Davis  ought  to  be  impeached. 

Judges  have  a  paternal  care  over  the  interests  of  the  public  and 
the  interests  of  suitors,  and  they  have  a  wide  latitude  of  discretion 
in  their  courts.  To  those  persons  who  are  at  all  familiar  with  the 
outside  literature  of  our  profession,  such  anecdotes  as  I  have 
recounted  are  old  and  stale;  they  show  what  the  power  of  the 
judge  is  to  do  right  outside  of  any  precedent  which  you  may  find 
laid  down  in  the  books. 

In  ancient  times,  the  powers  of  judges  over  juries  were  very 
extraordinary,  very  extreme.  In  regard  to  a  verdict  of  a  petit 
jury,  if  it  was  corrupt  there  was  a  judgment  of  attaint  against 
every  member.  It  is  a  most  extraordinary  judgment,  as  I  extract 
it  from  an  old  law  book,  and  it  reads  like  an  apostolic  anathema: 

"It  is  adjudged  that  they  lose  the  protection  of  that  law  which 
is  the  right  of  free  men  and  be  infamous  for  ever;  that  they  forfeit 
their  goods  and  chattels;  that  their  lands  and  tenements  be  taken 


510  MODERN  JURY  TRIALS. 

into  the  hands  of  the  king;  that  their  \uves  and  children  be-  thrown 
out  of  doors;  that  their  trees  be  uprooted,  their  meadows  plowed 
up,  and  their  bodies  cast  into  prison." 

Now,  right  here  comes  a  conflict  of  testimony  which  I  do  not 
deem  very  material.  I  do  not  deem  it  very  material  in  view  of 
these  facts,  whether  the  respondent  did  roundly  charge  them  with 
having  violated  their  oaths,  or  hypothetically  say  that  they  might 
have  done  so,  for,  gentlemen,  there  was,  on  that  occasion,  by  that 
jury,  an  undoubted  violation  of  official  duty,  plain,  clear,  and  palp- 
able. The  weight  of  testimony  in  this  case,  juror  after  juror,  the 
foreman,  the  county  attorney,  those  who  were  present  (I  cannot 
enumerate  them  all),  prove  that  Judge  Page  told  that  jury  that  of 
course  he  could  not  dictate  to  their  consciences,  but  that  if  the 
facts  were  as  they  had  reported  them,  and  they  had  disregarded 
them,  they  had  certainly  violated  their  oaths;  words  he  had  the 
right  to  say,  words  which  it  was  his  duty  to  say.  It  was  a  false 
verdict;  it  was  a  false  finding.  When  they  reported  to  him  that 
they  had  no  further  business,  with  the  ink  not  yet  dry  upon  that 
paper  wherein  they  had  presented  a  state  of  facts  which  required 
an  indictment,  they  stood  there  self -convicted  of  gross  malversa- 
tion in  their  duties,  and  it  was  the  duty  of  any  magistrate,  who 
did  not  cower,  as  judges  are  too  apt  to  do  in  these  days  of  elective 
judiciary,  before  a  diseased  or  complaisant  public  sentiment,  to  tell 
that  jury,  in  the  face  of  the  public  whose  rights  they  had  failed  to 
vindicate,  just  what  their  conduct  had  been.  If  he  had  done  less 
he  would  have  failed  in  his  duty,  and  that  Sherman  Page  ever 
feared  to  do  what  he  deemed  to  be  his  duty,  no  man  has  had  the 
temerity  here  to  charge. 

It  is  no  unusual  thing,  gentlemen  of  the  senate,  for  judges  to 
treat  the  action  of  juries  in  such  a  way  as  this.  My  learned  friend 
and  I  tried  a  case  before  Judge  Melson,  of  the  United  States  court, 
some  time  ago,  and  one  of  us  got  a  most  outrageous  verdict.  The 
court,  without  waiting  for  any  motion  from  either  party,  set  that 
verdict  aside  in  the  very  presence  of  the  jury  upon  his  own  motion, 
with  some  remarks  not  very  complimentary.  A  madder  jury  than 
that  you  never  saw.  They  were  a  great  deal  madder  than  Mr. 
Clough  or  I  was  about  it.  They  were  very  clear  for  a  few  moments 
that  the  judge  had  transgressed  upon  their  province. 

I  witnessed  a  similar  spectacle  some  years  ago  between  Judge 
Dillon  and  a  jury. 

An  anecdote  is  told  of  Justice  Grier  of  the  Supreme  Court  of  the 
United  States,  a  fearless  judge,  who  passed  a  long  life  in  the  pure 
and  upright  administration  of  the  law.  An  action  of  ejectment 


PAGE  IMPEACHMENT  CASE.  511 

for  a  farm  had  been  brought  in  his  court.  Technically  the  plaintiff 
might  recover,  but  actually  his  claim  was  a  most  unrighteous  one. 
The  jury  brought  in  an  unrighteous  verdict,  stripping  the  defend- 
ant of  his  farm;  and  the  old  judge,  leaning  over  the  bench,  said  to 
the  clerk  in  the  presence  of  the  jury:  "Mr.  Clerk,  set  aside  that 
verdict;  I  want  this  jury  to  understand  that  it  takes  thirteen  men 
in  this  court  to  steal  a  farm."  I  have  no  doubt  that  plaintiff 
thought  that  judge  ought  to  be  impeached. 

Great,  fatherly  Mr.  Justice  Davis,  now  Senator  Davis  of  Illinois, 
perhaps,  should  have  been  impeached  for  a  little  performance  of 
his  some  years  ago,  in  protecting  a  defendant  who  was  in  court 
without  his  lawyer  when  his  case  was  called. 

********** 

I  desire  to  state,  in  the  first  place,  senators,  in  regard  to  this 
charge,  that  although  courts  from  the  beginning  of  time  have  laid 
a  strong,  severe  and  relentless  hand  upon  persons  guilty  of  con- 
tempt, that,  so  far  as  I  know,  this  is  the  only  attempt  which  has 
ever  been  made  to  impeach  any  judge  except  Judge  Peck  for 
asserting  and  upholding  the  dignity  of  his  court.  By  common  con- 
sent, as  well  as  by  legal  precedent,  the  courts  of  this  country,  for 
the  purpose  of  protecting  their  dignity  and  of  maintaining  them- 
selves in  the  confidence  of  the  people,  are  invested  with  an  arbi- 
trary, direct  and  absolute  power,  not  exercised  through  any  jury, 
not  exercised  under  any  indictment — exercised  frequently  upon 
view.  The  necessities  of  the  situation  have  also  caused  the  intro- 
duction into  this  very  narrow  and  restricted  field  of  our  jurispru- 
dence, the  converse  of  the  maxim  that  no  person  shall  judge  in  his 
own  behalf.  A  contempt  of  court  cannot  well  be  punished  by 
another  court;  because  it  is  necessary  a  contemptuous  act  toward 
the  man  in  whom  the  court  is  embodied,  and  whose  duty  it  is  at 
once  to  protect  himself  and  make  an  immediate  example,  and  hence 
we  find  that,  owing  to  the  exigencies  of  the  situation — the  same 
necessity  which  suspends  all  law  under  certain  circumstances, 
which  establishes  martial  law  in  times  of  war,  which  abrogates  all 
law  in  times  of  fire  and  riot — also  confides  to  the  judges  a  certain 
power  which  might  be  called  absolute — if  that  word  were  not  an 
offensive  one  to  an  American  ear — but  a  power  which,  I  will  say, 
is  exercised  differently  from  that  entrusted  to  them  in  the  ordinary 
routine  of  judicial  proceedings.  It  is  also  a  proposition  in  the  law 
of  contempt,  that  great  and  extensive  as  it  is  over  all  the  citizens 
of  the  community,  it  is  much  more  rigorous  and  exacting  over  the 
officers  of  the  court. 

When  a  person  takes  upon  himself  to  become  the  ministerial 


512  MODERN  JURY  TRIALS. 

officer  of  a  court,  he  impliedly  agrees,  indeed  he  expressly  stipu- 
lates, to  assert  its  dignity,  to  preserve  its  decorum,  to  maintain  its 
authority.  In  regard  to  the  position  of  subordination  to  the  judge 
in  which  he  places  himself,  it  is  particularly  to  be  said  that  he  sub- 
mits to  certain  rules  of  discipline,  not  indeed  regulated  by  the  dis- 
cretion of  the  judge,  but  well  defined  by  precedents.  Mr.  Stimson 
was  such  an  officer  of  this  court;  he  was  a  deputy  sheriff;  he  was 
the  ministerial  and  executive  officer  of  this  court.  Through  him 
the  court  acted.  It  is  through  the  sheriff  that  the  power  of  the 
court  is  made  manifest  to  the  people,  through  its  writs  and  pro- 
cesses. The  judge,  in  his  seclusion,  has  no  executive  power.  He 
is  simply  seen  and  heard;  he  is  never  felt  except  through  the  sheriff 
who  executes  his  decrees,  and  hence  the  importance  of  the  rule  that 
the  executive  officer  of  the  court  shall  always  maintain,  instead  of 
derogating  from  its  dignity;  that  he,  being  that  presence  or  mani- 
festation of  the  court  most  frequently  seen,  and  which  oftenest 
touches  the  community  in  the  daily  concerns  of  life,  shall  deport 
himself  in  such  a  manner  as  to  certify  to  that  community  that  the 
authority  which  he  executes,  the  magistrate  under  whom  he  sits,  is 
worthy  of  the  confidence  of  the  people  upon  whom  and  among 
whom  the  court  administers  justice  and  he  executes  it.  It  is 
unnecessary  for  me  to  say,  with  any  elaboration  of  statement,  that 
for  any  person,  much  more  for  a  person  occupying  such  confiden- 
tial and  intimate  relations  to  the  court  and  to  the  administration  of 
justice,  to  publish  a  libel  upon  the  court  itself,  is  not  only  a  crime 
indictable,  but  a  very  gross  and  flagrant  contempt.  A  sheriff  who 
is  so  audacious  as  to  strike  a  magistrate  down  upon  the  bench, 
would  meet  with  instantaneous  punishment  at  the  hands  of  the 
court.  The  sheriff  who  should  go  out  doors  and  make  a  noise  in 
such  a  way  as  to  distract  the  orderly  and  decent  administration  of 
justice,  would  be  speedily  stopped  in  his  noisy  manifestations. 
These  would  be  most  offensive  acts  of  contempt.  But  the  sheriff 
who  inoculates  the  public  through  a  newspaper  or  through  a  writ- 
ten document  intended  to  be  published  in  a  newspaper,  with  the 
virus  of  contempt,  which  the  judge,  from  the  dignity  of  his  posi- 
tion, cannot  contradict  or  controvert,  who  puts  in  motion  an  agency 
which  no  human  power  can  recall — who  sends  forth  into  the  air 
those  spoken  words  which  can  no  more  be  taken  back  than  I  can 
take  back  what  I  have  been  saying  here  for  the  last  two  days — who 
puts  into  execution  processes  of  injury  irremediable  by  any  an 
known  to  man,  to  be  remembered  forever — commits  a  more  lasting 
insult  to  the  court  than  he  who  strikes  down  a  magistrate  in  his 
beat  of  judgment. 


PAGE  IMPEACHMENT  CASE.  513 

Now  that  Mr.  Stimson  has  had  a  libel  in  his  possession,  and  had 
been  conferring  with  certain  conspirators  in  regard  to  it,  is  one  of 
the  facts  in  the  case  which  has  not  been,  and  will  not  be,  contra- 
dicted. That  libel  is  as  follows: 

"  To  8.  PAGE,  Judge  of  the  District  Court,  Tenth,  Judicial  District,  Minnesota: 

"  SIK — Knowing  you,  and  believing  that  your  prejudices  are  stronger  than 
your  sense  of  honor,  that  your  determination  to  rule  is  more  ardent  than  your 
desire  to  do  right;  that  you  will  sacrifice  private  character,  individual  interests, 
and  the  public  good  to  gratify  your  malice;  that  you  are  influenced  by  your 
ungovernable  passions  to  abuse  the  power  with  which  your  position  invests 
you,  to  make  it  a  means  of  oppression  rather  than  of  administering  justice; 
that  yon  have  disgraced  the  judiciary  of  the  state,  and  the  voters  by  whose  suf- 
frages you  were  elected;  therefore,  we,  the  undersigned  citizens  of  Mower 
county,  hereby  request  you  to  resign  the  office  of  Judge  of  the  District  Court, 
one  which  you  hold  in  violation  of  the  spirit  of  the  constitution,  if  not  of  iU 
express  terms." 

It  is  perfectly  apparent,  senators,  from  the  appearance  of  Mr. 
Stimson  upon  the  stand,  that  this  stilted  piece  of  malignity  never 
proceeded  from  his  brain.  His  pen  never  indicted  it.  It  is  the 
offspring  of  the  cowardly  malice  of  some  person  who  knew  better 
than  to  identify  himself  with  it  in  public.  It  is  a  rank,  overgrown 
and  crude  imitation  of  a  certain  style  of  calumny  made  memorable 
by  Junius,  and  never  yet  reproduced  with  any  degree  of  likeness 
by  any  of  his  imitators. 

Furthermore,  this  document  was  never  intended  to  be  presented 
to  this  judge;  it  never  was  presented  to  him  as  a  matter  of  fact. 
After  it  had  been  circulated,  the  conspirators  concluded,  in  the 
chaste  language  of  one  of  them,  "  that  there  was  too  much  hell  in 
it,"  and  they  concocted  another.  But  the  one  which  I  just  now 
read  was  intended  to  be  published  through  the  county  of  Mower 
for  the  purpose  of  prejudicing  the  public  mind  and  bringing  the 
administration  of  justice  into  contempt. 

These  men  who  conceived  this  project  knew  well  enough  that 
the  charges  which  it  contained  are  arrant  falsehoods;  that  no  pri- 
vate suitor,  except  Riley,  in  all  the  length  and  breadth  of  his  dis- 
trict, could  be  produced  who  would  say  that,  in  regard  to  any  suit, 
the  conduct  of  this  respondent  had  been  other  than  most  magisterial 
and  just.  They  knew  perfectly  well  that  such  men  as  Richard 
Jones,  a  man  of  magnanimity  with  all  his  hatred,  and  Mr.  Cam- 
eron, a  man  of  character,  although  the  bitter  enemy  of  the  respond- 
ent, not  speaking  to  him  from  a  time  long  antedating  his  accession 
to  judicial  position,  would  state,  as  they  have  stated  under  oath 
here,  that  a  more  impartial  man  never  sat  upon  the  judgment  seat. 
88 


514  MODERN  JURY  TRIALS. 

This  document  is  an  emanation  from  that  same  band  of  conspira- 
tors whom  I  purpose  to  dissect  by  and  by;  who  form  this  overpow- 
ering public  sentiment  of  which  we  have  heard  so  much,  and  which 
has  resolved  itself  into  so  little  as  far  as  the  number  of  its  individ- 
ual members  is  concerned. 

The  time  chosen  for  the  circulation  of  this  document  was  during 
a  term  of  court.  It  was  circulated,  not  only  during  a  term  of  court, 
but  it  had  been  circulated  before,  and  the  question  arose  before  the 
respondent,  and  was  propounded  to  him  by  the  very  logic  of  the 
situation,  whether  he  should  sustain  the  dignity  of  his  court  against 
attacks  of  which  this  was  a  sample  of  many,  or  whether  he  should 
say,  "  I  fear  that  this  band  of  malefactors  is  too  strong  for  me,  too 
strong  for  the  law,  and  therefore  I  will  sit  down  and  become  con- 
temptible, and  allow  my  court  to  become  contemptible,  in  the  eyes 
of  the  people  among  whom  I  administer  justice."  His  position  was 
one  of  great  delicacy;  it  was  one  of  exceeding  importance.  Does 
any  senator  suppose  that  if  that  libel  had  been  circulated  with 
impunity,  other  disgraces  would  not  have  followed  ?  We  have 
seen  this  respondent's  house  surrounded  with  these  rioters,  whom 
this  senate  has  determined  it  will  know  nothing  about;  we  have 
seen  him  libelled  by  Mollison  and  Davidson  and  Bassford,  in  1873; 
and  that  libel  suffered  to  gnaw  at  his  reputation  like  a  vulture,  for 
for  five  years.  And  now,  at  this  time,  after  having  been  goaded  in 
his  judicial  capacity  and  outraged  as  a  private  citizen,  this  respond- 
ent was  confronted,  not  only  with  the  responsibilities,  but  with  the 
duties  of  his  position,  under  a  libel  more  calumnious  than  its  pre- 
decessor, should  he  not  do  his  constitutional  duty  ?  *  *  * 

Let  me  read  the  words  of  another: 

"If  in  English  history  we  inquire  into  the  original  occasion  foi 
these  constitutional  provisions,  we  shall  probably  find  their  origin 
in  the  abuse  of  executive  authority,  and  in  the  unwarrantable  intru- 
sion of  executive  agents  into  the  houses  and  among  the  private 
papers  of  individuals,  in  order  to  obtain  evidence  of  political  or 
intended  political  offenses.  The  final  overthrow  of  this  practice  is 
so  clearly  and  succinctly  stated  in  a  recent  work  on  the  constitu- 
tional history  of  England,  that  we  cannot  refrain  from  copying 
therefrom." 

It  relates  only,  as  any  senator  may  demonstrate  for  himself  who 
examines  the  constitution  on  that  subject  in  the  light  of  history,  to 
search-warrants  for  property,  where  seizure  of  the  person  is  also 
included  as  a  part  of  the  act  to  be  performed  by  the  officer;  and  it 
ordains  that  it  shall  not  issue  upon  the  mere  will  of  any  officer, 
executive  or  judicial,  and  that  it  must  contain  a  description  of  the 


PAGE  IMPEACHMENT  CASE.  515 

persons  to  be  seized  and  the  places  to  be  searched.  But  it  applies 
only  to  these  warrants,  leaving  the  other  questions  of  the  adminis- 
tration of  criminal  jurisprudence  to  other  provisions  of  the  consti- 
tution and  to  common  law  safe-guards.  If  my  learned  friend's 
view  is  correct — if  a  magistrate  cannot  arraign  an  offender  guilty 
of  contempt  without  complying  with  that  provision — then  the 
whole  chapter  of  contempt,  as  found  in  the  statutes  of  Minnesota, 
is  void;  because  we  both  agree  that  if  the  chapter  authorizes  any- 
thing, it  does  authorize  the  judge  to  proceed  against  the  offender 
in  some  cases  without  any  affidavit,  complaint  or  process  whatever. 
If  his  view  is  correct,  then,  also,  is  void  the  provision  which  author- 
izes any  person  to  arrest  another  whom  he  catches  in  the  perpetra- 
tion of  a  crime,  or  who  is  recent  and  warm  from  its  perpetration. 
But  the  fact  is,  that  these  provisions  were  never  held  to  apply  to 
judicial  proceedings  for  the  enforcement  of  the  criminal  law,  except 
incidentally  and  in  certain  cases.  They  were  never  held  to  apply 
in  cases  of  contempt,  any  more  than  in  cases  of  contempt  the  pro- 
visions of  the  constitution  were  held  to  apply,  which  provides  that 
in  all  cases  one  accused  of  crime  is  entitled  to  a  trial  by  a  jury  of 
his  peers.  Now,  we  all  know  that  a  person  who  is  accused  of  con- 
tempt is  not  entitled  to  a  trial  by  jury.  He  is  tried  summarily  by 
the  magistrate.  The  necessities  of  society  require  that  the  courts 
shall  be  rendered  respectable,  and  that  at  the  same  time  the  wheels 
of  justice  shall  not  be  stopped  or  clogged  in  punishing  offenses  of 
this  kind  by  the  ordinary  formal  instrumentalities  of  judicial  pro- 
cedure. 

******** 
Nearly  all  of  these  articles  of  impeachment  are  so  trivial  as  to 
seem,  at  first  view,  scarcely  to  warrant  the  serious  discussion  they 
have  received.  But  as  we  have  proceeded  in  our  duties  we  have 
become  persuaded  that  the  danger  in  the  charges  is  not  what  they 
allege,  but  lies  in  the  principle  upon  which  they  are  based  ;  that  the 
danger  is  not  to  this  respondent  but  to  the  public  itself — for  the 
spirit  which  inspires  them  all  is  the  spirit  of  revolt  against  consti- 
tuted authority.  It  has  appeared  in  that  most  dangerous  form  of 
an  attack  upon  the  judicial  department  of  the  state,  upon  its  integ- 
rity, upon  its  independence.  There  is,  after  all,  a  wise  conserva- 
tism in  the  people,  and  while  they  make  and  unmake  with  a  breath 
the  executive  and  the  legislature,  they  instinctively  refrain  from 
subjecting  the  judiciary  to  the  attacks  of  prejudice  or  disaffection. 
They  do  not  require  a  judge  to  be  popular.  They  require  him  to 
be  honest  and  as  firm  as  the  system  of  law  which  he  administers. 
They  recognize  the  fact  that  there  must  exist  in  all  forms  of  gov- 


616  MODERN  JURY  TRIALS. 

eminent  an  ultimate  principle  of  absolutism  and  permanency,  an 
impregnable  barrier  against  the  fitful  mutations  of  the  hour,  an 
inexorable  expounder  of  those  laws  of  self-preservation  which  pre- 
cede the  formation  of  states,  which  preserve  property,  which  secure 
liberty,  which  bear  with  unintermittent  force  upon  the  c'oncerns  of 
society  with  all  the  power  of  gravitation.  In  our  system  the 
judiciary  is  this  principle.  It  is  this  cohesive  principle  of  our  sys- 
tem which  is  this  day  attacked,  in  the  person  of  a  judge  whose 
integrity  has  not  been  questioned  even  by  his  enemies.  Our  entire 
policy  is  thus  assailed  at  its  strongest  point.  If  you  destroy  that 
which  is  most  permanent,  the  efficacy  and  independence  of  the  rest 
of  the  structure  will  fall  in  ruin  without  further  attack,  merely  as 
the  logical  consequence  of  such  a  process.  Is  it  not  well  for  us  to 
pause?  Rude  usurpers,  aggressive  kings  have  paused  at  this 
decisive  point.  Shall  we  be  less  wise  than  they  ? 

It  is  the  prerogative  of  Shakespeare  that  whatever  he  stoops  to 
touch  becomes  authoritative  in  quotation.  He  is  the  magistrate  of 
both  imagination  and  reason.  There  is  scarcely  a  topic  in  the  uni- 
verse of  human  thought  which  that  marvelous  mind  has  not  com. 
passed  in  its  cometary  sweep.  He  has  walked  in  the  abyss  of 
human  nature  and  seen  the  thousand  fearful  wrecks,  the  unvalued 
jewels,  and  all  the  lovely  and  the  dreadful  secrets  which  lie  scat- 
tered in  the  bottom  of  that  illimitable  sea.  The  maxims  of  policy, 
the  rules  of  war,  the  subtleties  of  love,  the  patient  forecast  of  hate, 
the  pangs  of  remorse,  the  ready  wages  which  jealousy  always  pays 
to  the  miserable  being  it  employs — all  things  over  which  the  mind 
or  the  nature  of  man  has  jurisdiction,  receive  from  him  their  defin- 
ition and  expression,  excepting  those  awful  topics  of  the  hereafter, 
which,  of  all  the  children  of  men  he,  the  greatest,  has  been  too 
reverent  to  touch.  He  knew  of  the  circulation  of  the  blood.  ID 
instance  after  instance  he  has  not  only  used  the  terms  of  the  law 
with  the  strictest  precision,  but  has  stated  its  abstrusest  principles 
with  entire  correctness.  So  wonderfully  true  is  this  assertion  of 
his  despotic  empire,  that  conjecture,  in  its  baffled  extremity,  has 
declared  that  the  hidden  hemisphere  of  this  world  of  thought  must 
be  Francis  Bacon,  who,  in  his  youth  "  took  all  knowledge  for  his 
province,"  as  if  it  were  his  heritage.  Shakespeare  has  created  an 
immaterial  universe  which  will,  like  him,  survive  the  bands  of 
Orion  and  Arcturus  and  his  sons. 

He  peculiarly  knew  the  limitations  of  power  and  authority,  and 
enforced  them  by  many  constitutional  illustrations.  And  in  that 
respect  he  has  presented  no  finer  exposition  than  that  one  where 
he  magnifies  the  sacredness  of  judicial  authority  in  the  scene 


PAGE  IMPEACHMENT  CASE.  517 

between  Henry  V.,  lately  become  king,  and  the  chief  justice,  who 
bad  formerly  committed  him  for  contempt. 

The  old  magistrate  stood  trembling  before  the  young  king,  whose 
life  had  given  no  warrant  of  wisdom  or  integrity;  for  he  had  in 
his  reckless  days  been  the  boon  companion  of  Falstaff  and  his  dis- 
reputable associates. 

Referring  to  his  humiliation  by  the  judge,  the  king  asked, 

"  Can  this  be  washed  in  Lethe  and  forgotten  ?  " 

The  judge  interposed  this  memorable  defense  : 

"  I  then  did  use  the  person  of  your  father ; 
The  image  of  his  power  lay  then  in  me  ; 
And,  in  the  administration  of  his  law, 
While  I  was  busy  for  the  commonwealth, 
Your  highness  pleased  to  forget  my  place, 
The  majesty  and  power  of  law  and  justice, 
The  image  of  the  king  whom  I  presented, 
And  struck  me  in  my  very  seat  of  judgment. 
Whereon,  as  an  offender  to  your  father, 
I  gave  bold  way  to  my  authority. 
And  did  commit  you." 

It  prevailed,  for  the  king  replied : 

••  You  are  right,  justice,  and  you  weigh  this  well/ 
Therefore  still  bear  the  balance  and  the  sword; 
And  I  do  wish  your  honors  may  increase, 
Till  I  do  live  to  see  a  son  of  mine 
Offend  you,  and  obey  you,  as  I  did. 
So  shall  I  live  to  speak  my  father's  word*— 
Happy  am  I,  that  have  a  man  so  bold, 
That  dares  do  justice  on  my  proper  son: 
And  not  less  happy,  having  such  a  son, 
That  would  deliver  up  his  greatness  so 
Into  the  hands  of  Justice.    You  did  commit  me, 
For  which  I  do  commit  into  your  hands 
The  unstained  sword  that  you  have  used  to  bear, 
With  this  remembrance:    That  you  use  the  same 
With  the  like  bold,  just  and  impartial  spirit 
As  you  have  done  'gainst  me." 

Of  all  the  illustrations  which  Shakespeare  has  given  to  authority, 
in  its  highest  and  lowest  estate,  I  know  of  none  finer  than  this. 
Not  Richard  sitting  upon  the  ground  and  telling  sad  stories  of  the, 
death  of  kings  when  all  his  fleeting  glory  seemed  but  a  pompous 
shadow;  not  Prospero,  the  ruler  of  two  realms,  who  by  virtue  of 
his  sway  over  his  immaterial  kingdom  looked  upon  the  great 
globe  itself  as  a  phantasma  merely,  which  would  vanish  with  all 
its  cloud-capped  towers,  and  gorgeous  palaces,  and  solemn  tem- 
ples; not  Lear  invoking  from  the  elements  themselves  the  abdi- 
cated regalities  of  his  sovereignty,  seem  to  me  so  imposing  as 
this  semi-barbarous  youth  respecting  the  majesty  of  the  law  in  the 
person  of  its  faithful  servant. 


518  MODERN  JURY  TRIALS. 

You  can  bow  before  this  mob.  You  can  lead  an  attack  which 
will  be  repeated  upon  every  department  of  our  government  by 
all  the  blatent  and  riotous  law-breakers  of  time  to  come,  who  may 
rise  up  in  rebellion  against  statutes  enacted  for  their  condemna- 
tion, against  magistrates  who  condemn  them.  Or  you  can  make 
enduring  the  endangered  functions  of  the  state.  You  can  quell 
forever  that  arrogant  spirit  of  insubordination,  before  which  no 
judge  is  sacred,  no  constitutional  provisions  are  obstacles.  Say  to 
this  respondent — 

"  Therefore  still  bear  the  balance  and  the  sword ; 
***** 
The  unstained  sword  which  you  have  used  to  bear 
With  this  remembrance:    That  you  use  the  same 
With  the  like  bold,  just  and  impartial  spirit 
As  you  have  done." 

and  this  proceeding  will  live  memorable  in  our  history  as  one  of 
its  preservative  events. 

Now,  gentlemen,  I  have  gone  through  these  articles.  I  am  loth 
to  leave  them,  even  now,  exhausted  as  I  am,  and  late  as  the  hour 
grows  to  be.  Standing  here  and  looking  back  over  the  path  which 
I  have  trodden  so  wearily  to  me,  and  I  know  to  you,  I  can  see 
how  a  better  man  and  a  more  attentive  understanding  might  have 
grasped  this  case  more  vigorously  than  I  have  done.  I  have 
endeavored,  fairly,  honestly  and  conscientiously,  with  no  legerde- 
main or  jugglery  of  intellect,  or  sophistication  of  your  understand- 
ings, to  state  the  law  as  I  honestly  believe  it  to  be,  to  state  these 
facts,  so  far  as  my  weak  recollection  serves  me.  If  I  have  erred 
you  will  correct  me.  I  besought  your  correction  as  to  facts  early 
in  my  argument.  No  senator  made  any,  and  I  presume  I  have  been 
in  the  main  correct.  But  there  is  one  thing  of  which  I  do  wish  to 
treat  before  I  take  a  last  farewell  of  this  case.  Whence  comes  this 
prosecution  ?  Are  we  not  now,  in  this  stage  of  the  proceedings, 
after  we  have  torn  to  shreds  calumny  after  calumny,  entitled  to  ask 
the  senate  of  Minnesota  and  the  public  of  this  state,  for  whom 
these  proceedings  are  instituted,  and  for  whom  this  expense  is 
made,  whence  comes  this  impeachment,  which  has  swallowed  up 
so  much  of  the  public  money  to  so  little  purpose  ?  I  have  now 
ceased  to  speak  for  the  acquittal  of  Sherman  Page  ;  I  speak  now 
for  his  vindication.  I  propose  to  bring  into  court  the  men  not 
now  in  court.  I  cite  before  this  bar  Ingmundson,  French,  Cam- 
eron, Crandall  and  the  rest.  I  assert,  and  I  propose  to  demon- 
strate within  the  short  time  which  I  have  imposed  upon  myself, 
that  "his  is  a  conspiracy  to  ruin  and  break  down  the  character  of  a 


PAGE  IMPEACHMENT  CASE.  619 

Just  and  worthy  man.  I  do  not  say  that  Judge  Page  is  the  most 
lovable  man  in  the  world.  He  is  a  man  of  angular  disposition  of 
character.  He  never  mixes  much  with  men ;  he  is  a  man  of  the 
closet  and  of  books.  That  he  is  a  man  of  strict  integrity  it  is 
unnecessary  for  me  to  say  ;  that,  no  man  has  come  here  to  doubt  or 
to  dispute.  Then  whence,  I  say,  comes  this  little  angry  cloud  so 
full  of  thunder  to  blast  him  ? 

It  appears  that  the  respondent  attacked  one  of  Mr.  Cameron's 
friends,  and  that  man  resigned  under  charges  preferred  to  the 
Governor.  It  appears  that  the  respondent,  leading  an  honest  pub- 
lic sentiment,  then  attacked  for  official  malversation  another  citizen 
of  Austin,  a  county  commissioner,  and  he  resigned  and  got  out  of 
the  way.  To  bring  a  suit  against  a  defaulting  treasurer  in  that 
county  is  a  crime  worthy  of  impeachment  ;  and  when  the  sureties 
of  Smith  saw  that  they  might  be  compelled  to  disgorge  the 
amount  which  the  attorney-general  of  this  state  felt  warranted  to 
call  upon  them  for,  they  immediately  arrayed  themselves  in  oppo- 
sition to  the  respondent.  In  the  meantime  he  became  judge. 
That  he  is  an  active,  vigorous  man,  who  hates  a  thief,  and  does 
not  fear  him,  sufficiently  appears.  He  never  has  been  arraigned 
for  tampering  with  the  money  of  the  public  ;  so  far  as  his  conduct 
has  passed  under  your  scrutiny  he  has  always  been  on  the  side  of 
right,  and  the  only  criticism  that  can  be  made  is  as  to  his  manner 
of  performance  of  his  duty.  In  the  meantime,  as  I  have  said,  he 
became  judge.  He  is  placed  in  a  status  of  legal  monasticism.  He 
cannot  retaliate,  he  cannot  keep  up  the  fight.  The  suit  which  he 
has  brought  as  an  attorney  he  cannot  try  ;  it  goes  off  into  another 
district ;  it  comes  before  my  honored  friend,  Judge  Waite,  in  an 
incidental  way.  He  is  placed  with  his  hands  tied  by  the  proprie- 
ties of  his  position.  He  can  no  more  strike  back  than  a  penitent 
can  strike  back  when  his  hands  are  raised  in  prayer.  He  is  in  a 
sacred  place,  and  these  men  keep  up  that  unholy  war  against  him. 
I  do  not  speak  outside  the  record  which  they  have  given.  It  is  so. 
He  no  sooner  takes  his  seat  upon  the  bench  than  this  man  Molli- 
son,  under  the  instruction  of  Davidson  and  Bassford  and  some- 
body else,  accuse  him  of  judicial  corruption,  in  deciding  a  case  in 
favor  of  the  Southern  Minnesota  Railroad  Company,  and  charged 
that  he  had  given  away  $50,000  of  the  money  of  the  county  of 
Mower.  Shortly  afterwards,  Mr.  Ingmundson,  Judge  Page,  it 
appearing,  not  having  been  in  a  convention  or  caucus  since  he  was 
judge,  goes  into  a  county  convention  after  he  had  received  a  nomi- 
nation, and  denounces  the  respondent  to  an  excited  people.  In  the 
meantime  came  up  the  whisky  riots  at  Austin,  threatening  the 


520  MODERN  JURY  TRIALS. 

public  peace,  and  the  sheriff  of  that  county  and  the  others  jeered 
at  the  man  who  by  the  laws  of  this  state  is  the  prime  conservator 
of  the  peace  over  four  counties.  He  left  his  home  to  attend  to  his 
official  duties,  and  when  the  lion  had  gone  the  jackals  all  came  out 
and  bayed  around  his  house,  calling  forth  that  order  to  Bayard 
that  he  should  protect  his  property,  his  family,  and  the  peace  of 
the  other  citizens.  In  the  meantime,  the  voice  of  calumny,  printed 
and  written,  is  continually  lifted  up  against  him.  The  most  out- 
rageous charges  are  made,  to  go  forth  upon  the  wings  of  the  wind. 
I  have  known  Sherman  Page  for  years,  gentlemen.  I  know  him 
well,  probably  better  than  any  other  man  upon  this  floor  ;  and  I 
must  confess  that  those  charges  were  repeated  with  such  an  acer- 
bity, persistence  and  reiteration,  that  I  was  afraid  my  friend  might 
have  gone  astray.  I  knew  he  would  not,  unless  goaded  beyond 
the  power  of  human  endurance  to  resist.  I  am  rejoiced  to  find 
that  my  own  fears  were  untrue.  He  resorted  to  those  remedies 
which  the  law  gives  every  man.  He  invoked  the  process  of  the 
court.  It  only  had  the  effect  of  widening  the  confederation 
against  him,  and  of  bringing  to  bear  upon  the  legislature  of  this 
state  those  powers  which  were  thought  necessary  for  his  final  and 
effectual  ruin. 

What  prejudices  have  not  been  adduced  in  his  case?  What  mis- 
erable prejudice  of  nationality,  or  caste,  or  feeling,  or  party  has 
not  been  appealed  to  here  ?  It  has  been  particularly  attempted  to 
be  made  to  appear  that  a  man  by  the  name  of  Riley  was  called  an 
"ignorant  Irishman;"  that  is  for  the  benefit  of  somebody.  Ing- 
mundson  has  been  paraded  here  as  a  martyr;  that  is  for  the  benefit 
of  somebody.  It  seems  that  Judge  Page  is  a  temperance  man; 
that  is  lugged  in  for  the  benefit  of  somebody.  Every  prejudice 
that  can  move  minds,  however  unworthy,  has  been  industriously 
plied  in  his  case.  I  know,  and  you  know,  senators,  that  some  of  you 
have  been  approached  in  a  way  in  which  no  judge  should  be 
approached.  You  have  not  been  able  to  shut  your  ears  to  this  per- 
sistent clamor,  that  this  man  shall  be  wrecked  and  ruined  forever 
in  this  world,  and  that  the  acts,  the  hopes,  the  ambitions  of  a  life- 
time shall  be  made  ashes  and  dust.  The  arguments  of  counsel  have 
been  belittled  in  advance;  the  character  of  men  has  been  wantonly 
run  down  and  crushed.  It  is  assumed  that  this  man  must  be  guilty, 
because  someone  has  accused  him;  and  yet,  when  you  come  to  sum 
it  up,  who  are  the  accusers?  Mollison,  the  libeler;  Riley,  the  man 
who  attempted  that  steal  upon  the  treasury,  subpoenaing  ninety 
witnesses  in  a  case  which  the  defendants  themselves  said  would 
never  be  tried.  Mandeville,  angry  because  of  a  decision  made 


PAGE  IMPEACHMENT  CASE.  521 

against  him  in  a  matter  of  some  six  or  fifteen  dollars,  I  forget 
which;  Stimson,  a  deputy  sheriff  caught  in  peculation,  Ingmund- 
Bon,  angry  because  a  grand  jury  had  the  audacity  to  even  inquire 
how  he  managed  his  office;  French,  a  man  utterly  unfit  to  be 
entrusted  with  any  public  duties  in  his  profession,  as  his  own  testi- 
mony and  that  of  Mr.  Kinsman  demonstrated.  This  man,  who, 
before  Judge  Page,  when  Stimson  was  being  examined  in  a  con- 
tempt, volunteered  those  statements  about  a  newspaper  published 
in  this  city — volunteered  the  statements,  and  now  says  that  the 
court  extorted  them  from  him !  Where  is  the  man  of  substance  in 
the  county  of  Mower,  who  represents  this  overpowering  sentiment, 
as  it  is  called  ?  French,  sitting  here  by  the  ear  of  counsel,  like  the 
toad  "  squat  by  the  ear  of  Eve."  Cameron,  with  his  forehead  of 
brass  and  unflinching  eye;  Harwood,  flitting  in  and  out  of  this  hall 
like  a  disgusted  ghost,  fearing  to  be  sworn;  Ingmundson,  with  his 
baleful  glare;  Mclntyre,  with  his  manly  hate  !  Pooling  in  money ! 
Pooling  in  money  !  One  hundred  dollars  !  Fifty  dollars  !  They 
have  levied  assessments  on  each  other  for  the  purpose  of  private 
prosecution,  through  public  processes.  And  the  unparalleled  spec- 
tacle has  been  presented  to  this  court,  never  before  known,  of  pri- 
vate prosecutors  coming  in  with  private  counsel,  paid  by  private 
means,  and  taking  entire  charge  of  a  public  case  !  Instances  have 
occurred  where  the  state  has  had  managers  with  eminent  counsel; 
but  I  say  that  this  is  an  instance  of  unapproached  and  unprecedented 
infamy,  where  a  private  mob  has  been  allowed  to  invade  a  proceed- 
ing like  this,  and  conduct  and  direct  the  prosecution.  This  con- 
spiracy finds  its  last  expression  here  in  that  act.  Why,  what  a 
community  the  town  of  Austin  must  be  !  What  a  community  it 
has  been  from  the  beginning !  When  did  you  ever  hear  in  this 
state,  since  any  of  you  have  lived  here,  that  the  devil  himself  was 
not  roaming  up  and  down  that  town,  "seeking  whom  he  might 
devour  ?  "  It  has  always  been  a  contentious  and  troublesome  place, 
full  of  turmoil.  That  community  takes  sides  on  every  question. 
They  are  rancorous,  senseless,  hateful.  Look  at  these  witnesses 
that  come  here.  Man  after  man — Hall,  French  and  the  rest;  one 
filling  out  where  the  other  fails.  If  one  of  them  goes  out  to  get 
his  meal,  the  other  takes  his  place.  The  everlasting  and  endless 
chain  of  misrepresentation  runs  smoothly  on.  It  is  a  bad  genera- 
tion : 

"They  are  all  gone  out  of  the  way;  they  are  together  become 
unprofitable;  there  is  none  that  doeth  good,  no,  not  one. 

"Their  throat  is  an  open  sepulchre;  with  their  tongues  they  have 
used  deceit;  the  poison  of  asps  is  under  their  lips; 


MODERN  JURY  TRIALS. 

"  Whose  mouth  is  full  of  cursing  and  bitterness; 
"Their  feet  are  swift  to  shed  blood; 
"Destruction  and  misery  are  in  their  way; 
"And  the  way  of  peace  they  have  not  known; 
"There  is  no  fear  of  God  before  their  eyes." 

Gentlemen,  from  my  earliest  days  I  -was  brought  up,  as  the 
respondent  doubtless  was  from  his  early  youth,  to  look  forward  to 
that  time  when  I  should  enjoy  the  confidence  and  esteem  of  my 
Mlow  men  in  official  station.  It  is  the  natural  dream  and  aspira- 
tion of  every  American  citizen,  whether  by  birth  or  adoption. 

Here  we  stand,  all  of  us,  some  to  the  manner  born,  and  some  of 
you  from  the  lands  which  you  never  more  shall  see.  You  may  talk 
about  the  enjoyment  of  life,  of  riches,  of  social  or  domestic  inter- 
course, of  freedom  of  person — all  of  these  yield  to  the  wide, 
unbounded  and  beautiful  prospect  which  is  spread  out  before  every 
man  worthy  of  it;  of  the  esteem  of  his  fellow  citizens,  and  promo- 
tion at  their  hands.  It  is  what  we  all  live  for,  disguise  it  as  you 
may;  each  of  you  occupies  a  seat  here  by  virtue  of  some  laudable 
ambition  in  that  respect.  I  think  I  might  be  resigned  to  any  one 
who  would  take  my  life — I  certainly  would  be  resigned  to  any  one 
who  might  take  my  property;  but  if  any  man  proposed  to  close 
before  me  forever  the  way  to  the  honor  and  respect  of  my  fellow 
citizens,  so  help  me  God,  I  would  rather  die  !  That  is  what  is  pro- 
posed to  this  man.  I  make  no  plea  here  for  mercy.  He  would 
rebuke  me  if  I  did.  He  feels  that  he  has  done  right  in  this  matter. 
I  have  read  somewhere,  or  heard  some  man  say,  that  if  you  remove 
him  from  office  you  need  not  necessarily  say  that  he  shall  be  for- 
ever disqualified  from  holding  office  of  trust  or  profit  under  the  laws 
of  this  state.  That  is  true — in  a  pettifogging  sense,  that  is  true. 
But,  if  you  remove  the  respondent  from  office,  because  you  judi- 
cially say,  by  a  two-thirds  vote,  that  he  is  a  felon,  does  not  the  con- 
sequence follow  from  which  the  author  of  that  evasion  fears  yon 
will  shrink  ?  Indeed  it  does. 

Is  he  a  felon  ?  Does  he  deserve,  if  he  had  been  a  common  crim- 
inal, to  wear  manacles,  and  to  be  incarcerated  for  years?  I  say  the 
the  same  result  will  follow  your  simple  vote  that  he  be  impeached 
and  removed  from  his  present  office.  There  is  no  mountain  top  so 
high,  no  vale  so  secluded,  no  ocean's  deep  so  un whitened  by  a  sail, 
that  wherever  he  may  go  on  this  earth,  the  disqualifying  and  attaint- 
ing consequence  of  conviction  will  not  follow  him. 

Gentlemen,  you  yourselves  are  on  trial  here,  or  will  be  by  pos- 
terity, as  judges,  as  this  man  is  on  trial  as  a  judge.  This  record 


BURCH  DIVORCE  CASE.  523 

will  survive  in  imperishable  print,  to  be  read  by  your  children  and 
your  children's  children.  You  yourself,  like  Lord  Bacon,  must 
appeal  to  the  foreign  nations  and  the  next  ages  for  your  vindica- 
tion in  this  respect.  You  yourselves  will  be  on  trial  long  after  you 
have  passed  away,  and  all  concern  in  you  and  recollection  of  you 
will  be  lost,  except  as  preserved  in  the  precedent  you  are  about  to 
make.  Place  yourselves  in  the  position  of  those  who  are  to  come 
after  you.  Endeavor,  if  you  can,  to  read  this  record  in  the  clear, 
calm  light  of  after-times.  So  reading  it,  can  each  of  you,  any  of 
you,  under  the  obligation  of  your  oaths  as  judges  sitting  under  the 
law  of  God,  and  accountable  to  God  Himself,  say  that  this  respond- 
ent shall  be  deprived  of  the  office  which  he  has  adorned  and  be  fixed 
in  the  death  in  life  of  civic  annihilation  ? 

He  was  acquitted  amid  great  applause. 


THE    BUKCH   DIVORCE    CASE. 

Tried  near  Chicago,  November,  1860. 


STATEMENT ABGUMENTS BESULT. 

The  greatest  divorce  suit  in  the  West,  if  not  equal  to  the  famous 
Forest  Case,  was  the  trial  of  Burch  against  Burch,  held  at  Napier- 
ville,  near  Chicago,  in  the  fall  of  1860.  The  bill  had  been  filed  in 
January  by  Mr.  Isaac  H.  Burch,  a  wealthy  banker  in  Chicago,  who, 
with  his  young  and  interesting  family,  occupied  a  high  social 
standing  in  that  city,  with  numerous  influential  Eastern  connec- 
tions. 

The  ground  for  divorce  was  an  alleged  criminal  intimacy  of  Mrs. 
Burch  with  David  Stuart,  a  lawyer  and  congressman  and  a  friend 
of  the  banker's  family,  whose  social  rank  was  also  exalted  and 
unquestioned. 

The  litigation  at  once  attracted  marked  attention  to  all  of  the 
details  of  the  case,  and  speculations  grew  so  intense,  with  expres- 
sion of  opinions  so  frequent,  that  a  motion  was  granted  to  change 
the  venue  from  Chicago  to  Napierville,  early  in  June,  1860. 


624  MODERN  JURY  TRIALS. 

The  testimony  was  lengthy  and  largely  taken  by  commission, 
and  the  greatest  bitterness  was  manifested  from  the  start  between 
counsel  and  contestants  on  every  technical  point  to  hinder  and 
embarrass  each  other.  The  previous  good  character  of  Mrs.  Burch 
was  established  by  the  highest  evidence. 

While  the  evidence  was  unusually  long,  and  taken  by  deposi- 
tions, both  in  Illinois  and  New  York  state,  it  all  amounted  to  a 
series  of  indiscreet  walks,  talks  and  visits  between  Mrs.  Burch  and 
Mr.  Stuart  and  one  Boyd — enough  in  all  to  make  a  sensational  Chi- 
cago scandal,  which  will  be  dealt  with,  without  the  terms,  words 
and  phrases,  usually  attached  to  such  cases. 

The  parties  being  very  wealthy  and  well  connected,  the  whole 
matter  flew  over  the  country,  through  the  newspapers,  like  a  gale 
of  wind.  Hon.  Erastus  Corning  of  New  York,  uncle  of  Mrs.  Burch, 
employed  Hon.  C.  Beckwith  of  Chicago,  Hon.  C.  H.  Browning  ot 
Quincy,  Hon  J.  F.  Farnesworth,  R.  N.  Murray,  Esq.,  of  Kankakee, 
and  E.  W.  Smith,  D.  G.  Colefield  and  G.  Sedgwick,  Esqs.,  of  Chi- 
cago as  counsel. 

For  Mr.  Burch  appeared  J.  Hoyne,  H.  L.  Miller,  A.  L.  Lewis, 
Jno.  Van  Arman,  H.  C.  Walker  and  Wert  Dexter  of  Chicago,  U. 
Osgoode  of  Joliet,  W.  D.  Barry  of  St.  Charles,  and  Messrs.  Val- 
lette  and  Cody  of  Napierville. 

The  case  in  detail  would  be  immensely  tedious,  and  only  serve  to 
show  to  what  great  length  a  family  quarrel  could  reach.  It  is 
thought  better  to  condense  all  to  a  short  story  and  retain  the  essen- 
tial particulars,  and  show  the  adroitness  and  ingenuity  of  counsel. 
The  labor  of  reducing,  and  mass  of  matter  excluded,  has  been 
very  considerable.  Many  excellent  passages  of  arguments  are 
omitted,  a  few  rare  extracts  reported.  It  was  said  to  be  Mr.  Van 
Annan's  greatest  effort,  and  Mr.  Browning  was  then  the  peer  of 
Stephen  A.  Douglas.  The  selections  reported  are  too  brief  to  need 
separate  mention.  They  are  all  eloquent  with  facts. 

The  bill  for  divorce  filed  by  Mr.  Burch  shows  that  on  the  twen- 
ty-fifth of  May,  1848,  he  married  Mary,  his  wife,  at  Albany,  and 
immediately  removed  to  Chicago;  that  he  had  born  to  him  two 
children;  that  on  the  fourteenth  of  October,  1857,  his  wife  commit- 
ted the  indiscretions  with  David  Stuart,  and  renewed  the  same  at 
intervals,  and  with  other  persons  at  various  times  and  places.  Mr. 
Stuart  was  known  as  an  able' lawyer  in  Chicago,  and  as  an  intimate 
in  the  Burch  family.  Mr.  Burch  was  knit  closely  to  the  best 
society  of  Chicago  by  the  ties  of  business  and  of  church  member- 
ship. 

Mrs.  Burch  denied  not  only  the  direct  general  charge,  but  made 


BURCH  DIVORCE  CASE.         ^  525 

her  denial  and  explanation  so  full  and  explicit  as  to  cover  every 
possible  point  raised  during  the  progress  of  the  trial.  It  is  cer- 
tainly one  of  the  most  affecting  and  thrilling  statements  of  a 
woman's  sufferings  and  a  man's  wrongs  which  was  ever  penned.  If 
we  believe  it  true,  it  is  most  terrible.  "In  every  line  the  formality 
of  the  lawyer  seems  to  be  struggling  with  the  deep  pathos  of  a 
woman's  wrongs,  as  if  Justice  shed  tears  as  she  heard  the  story." 
Mrs.  Burch  said  that  she  was  convinced  that  her  husband  married 
her  for  the  money  he  expected  to  receive  with  her  from  her  uncle, 
Erastus  Corning  of  Albany,  and  for  the  assistance  such  a  connec- 
tion would  be  to  him  in  his  business. 

Mrs.  Burch  relates,  with  minute  fidelity,  the  various  occasions 
upon  which  she  met  Mr.  Stuart,  and  how  he  gave  her  a  book,  which 
she  left  on  the  parlor  table;  how  he  once  caught  hold  of  her  arm — 
the  only  familiarity  he  ever  took  with  her;  how  once,  being  engaged 
with  Stuart,  she  said,  "Not  at  home"  to  Mr.  Farnam,  and  after- 
ward apologized  and  explained  the  mistake;  and  repeatedly  denies 
that  she  ever  had  any  criminal  intercourse  with  him  whatever. 
Their  acquaintance  was  at  first  hardly  familiar,  but  they  met 
repeatedly;  repeatedly  Mr.  Burch  invited  Mr.  Stuart  to  his  house 
to  meet  such  men  as  Hon.  Edward  Everett  and  Senator  Douglas, 
and  included  his  name  upon  invitation  lists;  seemed  to  esteem  him 
as  a  dear  friend. 

Unfortunately,  however,  for  her  own  safety  and  future  peace, 
she  wrote  a  long  and  lamentable  letter  to  her  pastor,  Rev.  Mr.  Pat- 
terson, in  which  she  hinted  at  the  familiarity  and  indiscretions, 
and  tacitly  admitted  that  she  had  sinned  This  was  a  serious  obsta- 
cle to  surmount,  and  all  the  adroitness  of  counsel  was  needed  to 
remove  its  weight  and  break  its  force  with  the  jury.  At  a  later 
stage  she  signed  and  swore  to  an  alleged  confession  before  a  notary, 
conveniently  near  for  that  purpose,  and  this  was  greatly  to  her 
prejudice.  She  was  then  hurried  home  to  New  York,  and  her  name 
scraped  from  her  trunk,  and  harsh  means  used  to  humiliate  her  with 
her  nearest  friends. 

The  excitement  of  the  trial  attracted  hundreds  from  the  surround- 
ing country,  where  farmers  left  their  fields  and  merchants  their 
stores,  to  listen  to  the  sad  but  romantic  story  of  a  home  in  ruins. 
The  result  of  the  trial  is  the  most  sensational  ever  reported,  and 
excited  the  whole  state  and  northwest.  The  pick  of  the  Illinois 
bar  were  engaged  in  the  trial.  Mr.  Miller  opened  for  the  prosecu- 
tion, detailing-  substantially  what  has  been  shown,  with  full  particu- 
lars of  the  evidence  he  would  offer.  He  spoke  at  great  length  and 
with  much  solemnity,  and  closed  with  the  following  letter. 


526  MODERN  JURY  TRIAL& 


Mn.  JBurcK's  Letter  to  Rev.  Mr.  Patterson. 

ALBANY,  Jan.  S3,  1860. 

Mr  DEAB  MR.  PATTEBSOJ? — Will  you  pardon  me  for  thus  addressing  you, 
but  I  am  in  such  distress  this  morning,  I  feel  as  though  I  must  look  to  you, 
my  former  friend  and  pastor,  for  advice  and  sympathy.  I  feel  that  a  few 
words  of  consolation  from  you,  with  the  assurance  that  I  had  your  prayers, 
would  do  me  great  good.  I  beg  that  you  will  not  cease  entirely  to  take  an 
interest  in  me,  for  if  ever  I  needed  the  prayers  of  Christians  I  do  now,  when 
I  am  an  outcast — a  poor  lone  wanderer  upon  the  earth — shunned  by  all,  and 
loved  by  none.  I  try  to  feel  that  for  such  as  I  our  Savior  died,  and  I  pray 
that  my  sins  may  be  washed  away.  "  But  your  iniquities  have  separated 
between  you  and  your  God,  and  your  God  hath  hid  his  face  from  you  that  he 
will  not  hear."  This  I  feel  most  deeply.  Do  you  think  he  will  hear  me  when 
I  call  upon  him  T  "My  lips  have  indeed  spoken  lies,  and  my  tongue  hath 
uttered  perversenesa,"  I  feel  all  this  most  deeply,  and  I  try  to  find  comfort 
in  his  blessed  word.  "Behold  the  Lord  heard.  His  arm  is  not  shortened 
that  he  cannot  save;  neither  is  his  ear  heavy  that  it  cannot  hear."  This  com- 
forts me;  but,  oh !  at  times  my  sin  is  so  great,  the  sense  of  my  iniquity  is 
such,  that  I  feel  utterly  lost  and  undone.  I  pray,  and  often,  that  I  may  be 
forgiven.  I  know  that  "the  vilest  sinner  may  repent,"  but  I  think  sometimes 
that  there  was  never  one  so  vile  as  L  My  doubts,  fear  and  despair  then  over- 
whelm me,  I  try  to  feel  that  God  will  in  his  own  good  time,  do  all  things 
well.  I  know  he  does;  but,  oh  !  my  burden  is  so  heavy,  my  sin  so  great,  I 
do  cast  all  upon  the  Lord,  and  I  know  he  will  sustain  me.  Will  you  give  me 
your  prayers  ?  Will  you,  Mr.  Patterson,  ask  my  husband  to  ever  pray  for  me  ? 
He  is  a  Christian,  and  so  are  you.  Perhaps  your  prayers  with  mine  may 
be  heard  and  I  may  be  forgiven.  Will  you  and  he  sometimes  pray  together 
for  me  ?  I  do  need  such  prayers.  And  perhaps  for  the  love  he  once  bore 
bis  erring  wife,  he  will  pray  for  me.  He  did  pray  for  and  with  me  before  I 
left  him,  and  perhaps  if  you  ask  him  he  will  continue  that  prayer.  T  know 
that  he  loathes  me  now;  but  I  pray  that  he  will  forgive  me,  for  it  is  Christlike 
to  forgive,  and  he  is  good.  Oh,  Mr.  Patterson,  I  have  wronged  him.  I  can 
not  tell  you  how  I  was  led  on  so,  step  by  step,  from  all  that  was  right  and 
good.  I  can  only  say  that  I  have  so  deeply  ginned,  I  fear  I  shall  never  be 
forgiven,  and  I  can  only  hope  and  pray  without  ceasing.  Do  you  and  Mr. 
Burch  pray  for  me.  I  can  ask  the  prayers  of  none  others,  and  though  I  have 
so  sinned  against  him,  I  believe  he  will  pray  for  me,  and  you  know  ''the 
fervent  prayer  of  the  righteous  man  availeth  much."  At  times,  so  great  is 
my  faith  in  God's  promises,  I  feel  that  I  shall  be  saved — shall  be  forgiven — for 
he  says  those  who  truly  repent  shall  be  saved,  and  he  knows  how  earnestly  I 
repent  of  my  sins.  And,  Mr.  Patterson,  will  you  comfort  my  dear  husband. 
I  do  pray  for  him  and  those  dear  children.  God  only  knows  and  has  wit- 
nessed my  agony  when  thinking  of  and  praying  for  my  loved  ones.  Oh!  the 
thought  that  my  husband,  who  once  so  fondly  loved  me,  now  looks  upon  me 
with  loathing  and  hatred,  is  almost  unbearable.  But  I  pray  God  that  hi» 
heart  may  be  more  softened  toward  me;  that  he  will  feel  less  anger  and  more 
pity,  and  that  he  too  will  forgive  the  great  wrong  I  have  done  bin*.  I  hope 
you  will  sometimes  see  my  dear  childre-  They  will  never  know  how  I  lovt 


BURCH  DIVORCE  CASE.  527 

them,  how  I  pray  for  them.     My  heart  aches  to  think  I  may  never  see  them 
again.     And  yet  Mr.  Burch  has  promised  that  I  should,  and  I  believe  him. 

Again,  will  you  pray  for  me?  Will  you  ask  Mr.  Burch  to  pray  for  me  ? 
Your  joint  prayers  with  mine  may  be  answered.  Will  you  write  me  as  soon 
as  you  can  conveniently  ?  Inclose  the  letter  in  an  envelope  to  Mr.  Corning, 
Albany. 

Your  friend, 

M.  W.  BURCH. 

MB.  BECKWITH'S  OPENING  FOB  THE  DEFENSE. 

Mr.  Beckwith  commenced  by  saying  that  he  had  an  important 
duty  to  perform  in  stating  the  case  for  the  defendant.  He  did  not 
believe  that  half  of  the  lady's  wrongs  could  be  told  ;  none  but  her- 
self and  her  God  were  conscious  of  the  utter  desolation  of  her  home 
for  years.  The  issue  was  whether  the  lady  had  been  unfaithful  to 
her  marriage  vows.  The  issue  was  made  up  by  the  bill  and  the 
answer.  The  bill  charged  her  with  adultery  with  Mr.  Stuart,  and 
secondly  with  another  person  in  Guilford,  Conn.  The  question  of 
any  guilt  with  Mr.  Boyd  was  not  before  them.  In  arriving  at  the 
value  of  the  circumstances  and  confession  alluded  to,  it  was  import- 
ant that  they  should  be  aware  of  the  manner  in  which  the  confes- 
sions were  wrung  from  her — under  the  most  solemn  assurances  that 
they  should  never  be  made  known.  No  evidence  would  be  needed 
to  satisfy  them  of  the  utter  worthlessness  of  the  testimony.  It 
would  be  necessary  for  him  to  recapitulate  some  of  the  circum- 
stances of  the  married  life  of  the  parties.  At  the  time  of  her  mar- 
riage, the  defendant  was  20  years  of  age,  the  idol  of  the  family 
where  she  lived,  her  husband  a  man  of  mature  years.  His  manner 
of  seeking  her  hand  was  disreputable  among  all  gentlemen.  Hav- 
ing been  refused  by  her  natural  protector,  he  sought  her  hand 
secretly,  and  deeming  it  finally  for  her  best  happiness,  her  friends 
assented  to  her  marriage  and  provided  for  her  liberally.  What  was 
the  moving  spring  of  the  complainant  in  seeking  this  clandestine 
marriage  ?  He  would  show,  if  allowed,  that  it  was  not  love  and 
affection,  but  mercenary  motives.  That  most  unholy  passion  grew 
upon  him  until  money  became  his  god.  The  extinguishment  of  the 
little  love  and  affection  that  he  had  gave  rise  to  other  passions — 
pride,  vanity,  hypocrisy  and  jealousy  took  the  place  of  love.  Dif- 
ficulties and  unkind  feelings  grew  up  between  the  complainant  and 
some  of  the  business  partners  of  Mr.  Corning.  The  covetousness 
of  the  complainant  made  him  feel  bitter,  harsh  and  unkind  toward 
the  relatives  of  his  wife,  and  those  feelings  were  heaped  upon  the 
head  of  the  unfortunate  wife.  Doubtless  he  was  prospered  in  busi- 
ness. How  much  that  was  to  be  attributed  to  the  kindness  of  the 


528  MODERN  JURY  TRIALS. 

friends  of  the  lady  lavished  upon  Mr.  Burch,  it  was  not  for  him  to 
say.  They  were  always  ready  to  aid  him.  These  passions  had 
extinguished  the  affection  of  the  plaintiff  for  his  wife.  The  man 
was  governed  by  pride,  vanity,  hypocrisy  and  jealousy.  He  made 
display  to  the  public  that  everything  was  going  on  in  the  most 
happy  manner  in  his  splendid  house,  and  yet  at  that  time  his  wife 
suffered  from  his  unkind  words,  being  frequently  obliged  to  leave 
his  table.  Mr.  Burch  introduced  Mr.  Stuart  to  his  wife.  He 
would  not  say  that  the  plaintiff  thought  of  the  deposit  of  the  Illi- 
nois  Central  Railway,  of  which  Mr.  Stuart  was  attorney,  when  he 
introduced  Mr.  Stuart  to  his  wife.  But  Mr.  Burch  not  only  gave 
his  business  to  Mr.  Stuart,  but  induced  others  to  give  him  business. 
He  induced  his  wife  to  believe  that  Stuart  was  his  most  particular 
friend,  but  still  they  saw  the  jealousy  of  the  man.  "While  inviting 
Stuart  to  his  house,  he  was  infusing  suspicion  of  his  wife  in  the 
minds  of  his  servants,  leading  them  to  suspect  their  mistress. 

He  did  not  attribute  this  to  a  plan  at  that  time  to  get  rid  of  hit 
wife,  but  to  the  green-eyed  monster ;  still  Stuart  was  kept  there, 
as  his  particular  friend.  About  that  time  a  young  lady  came  there 
— and  the  affection  which  ought  to  be  centered  on  his  wife  was 
transferred  to  another.  They  would  endeavor  to  show  that  by 
numerous  acts  of  familiarity,  acts  of  great  imprudence  on  nume- 
rous occasions,  and  at  various  times,  at  his  own  house,  he  had  thus 
not  only  forgotten  his  wife,  but  transferred  his  attentions  to 
another ! 

Mrs.  Burch  discovered  that  her  husband  was  not  pleased  with 
^fr.  Boyd's  attentions  to  her,  and  she  immediately  told  him  in  a 
letter  that  she  had  done  wrong  in  receiving  the  attentions  of  Boyd, 
and  asking  his  pardon.  What  did  Mr.  Burch  do  ?  A  coward  him- 
self, he  had  not  the  courage  to  drive  Boyd  out  of  town,  but  put 
the  duty  upon  his  feeble  little  wife,  whom  he  compelled  to  write 
insulting  letters  to  compel  Boyd  to  leave.  There  were  two  letters 
thus  compelled.  The  last  accused  Boyd  of  having  seduced  Mrs. 
Burch,  and  Mr.  Boyd  indignantly  denied  the  charge,  and  demanded 
to  deny  it  in  the  presence  of  the  husband,  little  dreaming  that  the 
letter  had  been  dictated  by  Mr.  Burch.  But  it  was  admitted  that 
at  this  time  Mr.  Burch  did  not  suspect  the  fidelity  of  his  wife. 
They  now  arrived  at  a  time  when  Mr.  Burch  formed  a  settled  pur- 
pose to  get  rid  of  his  wife.  Mr.  Burch  learned  that  Mr.  Farnam, 
a  neighbor,  had  called  at  his  house  during  the  visit  of  Mr.  Stuart, 
and  was  denied  admission  by  the  servant,  who  said  what  she  knew 
was  a  lie,  that  Mrs.  Burch  was  up  stairs.  And  nfter  the  servant 
had  denied  Mr.  Farnam  admittance,  Mrs.  Burch  reproved  her,  say- 


BURCH  DIVORCE  CASE.  529 

ing,  "You  know  I  am  always  at  home  to  Mr.  Farnam."  Mr.  Burch 
heard  of  this  denial  of  Mr.  Farnam's  admission  during  the  pres- 
ence of  Mr.  Stuart,  and  thereupon  confined  his  wife  in  the  stran- 
gers' room,  and,  after  locking  the  doors,  and  denying  her  the 
access  of  her  friends,  obtained  the  confession  in  his  own  language, 
"  by  that  most  difficult  of  all  processes — cross-examination — and 
the  affectation  of  more  knowledge  than  he  possessed,  and  such 
other  influence  as,  under  God,  he  was  able  to  bring  to  bear,"  and 
he  impiously  claimed  that  God  thus  worked  in  and  through  him  in 
obtaining  this  confession.  He  had  solemnly  promised  not  to  use 
the  confession,  and  on  another  occasion  he  had  said  he  obtained 
the  confession  by  his  fist  shaken  in  her  face,  telling  her  to  sign  it. 

Mrs.  Burch  was  sent  away  on  Wednesday  evening.  Her  name 
was  ignominiously  rubbed  off  her  trunk,  and  yet,  in  the  midst  of 
his  overwhelming  affliction,  he  gets  his  wife  to  sign  a  deed  waiv- 
ing her  rights  of  property.  Money  seemed  to  stick  out  even  then. 
A  bill  is  prepared,  and  service  is  made  of  an  application  for 
divorce.  The  most  she  could  say  to  her  mother  was  :  "  Mother, 
Mr.  Burch  has  made  me  sign  a  lie  to  ruin  me."  And,  while  the 
woman  was  so  crazed  and  bereft  of  peace,  she  sat  down  and  wrote 
to  the  partner  of  her  husband,  and  one  of  the  alleged  confessions 
was  in  this  letter.  Another  alleged  confession  was  in  a  letter  to 
her  pastor,  in  which  she  reiterated,  "  pray  for  me,"  "  pray  for  me." 
Another  letter,  which  was  put  forth  as  a  confession,  was  to  Mrs. 
Farnam,  desiring  to  discover  "a  paper  having^some  printing  on  both 
sides,  and  some  writing."  That  letter  had  been  handed  over  to 
the  husband,  and,  although  he  had  not  seen  it,  he  did  not  believe  it 
would  show  the  slightest  criminality.  As  to  the  alleged  confession 
in  a  letter  to  Mrs.  Thomas  Burch,  Mrs.  Burch  could  not  recollect 
the  contents,  and  he  did  not  believe  there  would  be  an  iota  of 
proof  against  Mrs.  Burch  in  it.  Mr.  Burch  not  only  obtained  one 
confession  of  his  wife,  at  the  time  she  went  away,  but  made  her 
sign  another  paper  at  the  same  moment,  contradicting  herself. 

What  were  the  suspicious  circumstances  against  Mrs.  Burch  ? 
The  gardener  was  called  to  testify  to  the  presence  of  Stuart  at  the 
house  on  the  occasion  of  the  unpacking  of  the  clock.  He  said 
Stuart  was  there  when  he  shut  up  the  house,  and  he  recollected 
that  he  went  to  sleep  at  half-past  eleven,  and  that  Stuart 
was  there  five  or  six  nights  after  that  up  to  the  time  he  went 
to  sleep.  They  would  show  by  direct  proof  that  at  the  time 
when  the  box  containing  the  clock  arrived,  Stuart  was  not  there  ; 
that  Stuart  was  sick  eight  or  nine  days  after  the  arrival  of  the 
clock,  and  its  opening  at  Mr.  Burch's  house.  This  was  the  time 
34 


530  MODERN  JURY  TRIALS. 

when  the  witness  recollects  when  he  went  to  sleep  and  heard  the 
outside  door  bolt,  up  three  pair  of  stairs,  through  several  doors  1 
Mr.  Burch  knew  that  the  statement  of  his  man-of-all-work  was  a 
lie. 

As  to  the  other  circumstances,  he  claimed  that  the  prosecution 
could  not  show  even  an  imprudence  on  the  part  of  Mrs.  Burch. 
Since  Mr.  Burch  had  deliberately  written  down  that  the  servants 
knew  nothing,  he  had  been  deliberately  engaged  in  poisoning  the 
minds  of  the  servants  as  to  the  character  of  his  wife.  It  would 
appear  by  the  testimony  that  Mr.  Stuart  accompanied  Mrs.  Burch 
to  a  concert,  and  conversed  with  her  freely  during  the  concert 
And  yet  Mr.  Burch  gave  the  ticket  to  Mr.  Stuart,  and  while  Mr. 
Stuart  sat  on  one  side,  Mr.  Bnrch,  her  husband,  sat  on  the  other. 
Mrs.  Burch's  sister  and  husband,  and  Mr.  Corning,  were  also  there, 
and  yet  that  was,  perhaps,  one  of  the  things  that  was  not  to  be 
set  aside  by  itself,  but  to  be  saved  and  weighed  with  other  circum- 
stances as  the  learned  counsel  desired.  He  could  show  that  the 
testimony  as  to  circumstances  was  manufactured.  "When  they 
arrived  at  the  truth  they  would  find  that  what  Mr.  Burch  said  was 
true — he  had  no  proof  except  her  confessions.  While  Mr.  Burch 
claimed  that  he  had  "  loved  his  wife  as  a  man  never  loved,"  it 
would  be  shown  that  he  had  insulted  her  in  his  own  house,  heaped 
indignities  upon  her  so  as  to  cause  her  to  leave  her  own  table  fre- 
quently, and  still  he  hypocritically  said,  "  I  have  loved  her  ardently 
as  man  never  loved  before." 

It  has  been  said  that  the  punishment  was  less  severe  now  than 
of  old.  But  there  was  no  death  worse  than  that  of  social  death, 
and  that  question  they  were  requested  to  try  as  a  question  of  prop- 
erty. Her  little  remaining  years  were  of  but  slight  consequence. 
There  were  higher  consequences  to  her  than  that — she  had  two  dear 
children.  The  verdict  of  the  jury  would  either  clear  her  children's 
reputation,  or  stain  them  for  life.  He  asked  the  jury  to  try  the 
case  as  they  would  have  their  own  children's  case  tried;  not  to 
stamp  infamy  upon  those  children  without  their  duty  most  impera- 
tively required  it. 

POSniVK    EVTDB3TCK. 

David  Stuart  (one  of  the  best  witnesses  ever  sworn  in  any  case"), 
came  into  court  in  an  evidently  nervous  state  of  feeling  ;  his  man- 
ner was  wandering  and  excited,  his  eye  restless  and  his  motions 
generally  uneasy  ;  but  before  he  departed  he  resumed  his  wonted 
self-possession,  his  graceful  bearing  and  polished  manner,  and  left 
the  stand  with  the  triumphant  air  of  victorious  virtue, 


BURCH  DIVORCE  CASE.  63* 

Mr.  Stuart  was  about  forty -five  years  of  age,  with  silvery  locks, 
and  a  bushy  beard  of  greyish  hue ;  height  about  five  feet  ten, 
weight  about  180  pounds  ;  shoulders  broad,  form  erect  and  manly, 
movements  easy  and  graceful,  and  general  appearance  that  of  a 
man  of  excellent  acquaintance  with  the  world — and  with  himself. 
His  high  cheek  bones,  or  overhanging  brows  seem  to  imbed  hia 
keen  eye — but  his  glance  has  none  of  the  snakish  look  of  most 
deep  sunken  eyes — with  a  firmly  set  mouth  and  classic  nose,  his 
features  present  a  determined  front  that  somewhat  belies  the  sweet 
tones  of  his  musical  voice — such  a  persuasive,  convincing  voice, 
that  one  could  hardly  wonder  that  Mrs.  Burch,  Miss  Fannie  Burch, 
and  Miss  Spaulding  should  have  pronounced  it  "  fascinating."  His 
prominent  legal  position — his  known  reputation  for  eloquence  as  a 
pleader  at  the  bar — his  Congressional  experience,  and  his  extensive 
intercourse  with  men  of  mark,  gave  him  an  effective  address  that 
excellent  conversational  powers  in  no  way  impair.  A  perfect  gen- 
tleman in  manners,  educated,  cultivated,  good-natured  and  polite, 
he  seemed,  to  the  most  superficial  observer,  to  be  well  calculated 
to  win  the  affections  of  an  appreciative  woman. 

Mr.  Stuart's  eye  kept  wandering  toward  the  door,  where  Mrs. 
Burch  was  soon  to  enter,  and  when  she  did  enter  he  rose  to  make 
room  for  her  to  pass,  bowing  lowly  as  he  did  so.  Mrs.  Burch  met 
him  with  a  glance  of  recognition  ;  one  could  detect  a  shade  of 
embarrassment  in  both.  She  passed  on  to  her  accustomed  seat,  and 
he  resumed  his  uneasy  position — toying  with  his  watch-chain, 
stroking  his  beard,  and  otherwise  nervously  behaving  himself.  It 
was  a  scene  of  interest — the  alleged  criminals  within  a  few  feet  of 
the  alleged  injured  husband,  about  to  be  confronted.  And  when 
Mr.  Beckwith,  with  his  usual  imperturbility,  said,  "Mr.  Stuart 
will  take  the  stand,"  the  crowded  room  seemed  held  in  breathless 
suspense.  Every  eye  watched  him  as  he  took  the  oath,  and  then 
turned  to  give  his  testimony,  facing  Mrs.  Burch,  who  sat  only  fif- 
teen feet  distant. 

For  four  hours  Mr.  Stuart  answered  the  interrogatories  as  to  his 
intimacy  with  the  Burch  family,  explaining  all  the  incidents  that 
had  been  alluded  to  by  other  witnesses,  minutely  detailing  the  cir- 
cumstances of  his  alibis  on  the  days  specifically  mentioned  in  the 
confession  of  Mrs.  Burch,  as  having  been  the  occasions  of  his 
criminal  intercourse.  The  only  tremor  in  his  voice  was  when  he 
was  asked  the  direct  question  as  to  whether  he  was  guilty  of  the 
erime  charged,  and  then  there  was  a  sublime  grace  in  the  manner 
in  which  he  raised  his  hand  and  upturned  his  face,  replying  : 
"  Never — never,  so  help  me  God,  nor  any  act  that  ever  approached 


532  MODERN  JURY  TRIALS. 

anything  like  it"     This  he  uttered  with  a  solemnity  and  impress 
iveness  that  commanded  universal  silence. 

His  dignified  and  polished  bearing  throughout  the  whole  exam- 
ination, his  chaste  language,  earnest  manner,  plausible  explana- 
tions, and  apparently  spontaneous  as  well  as  prompt  answers  to  all 
questions,  seemed  to  impress  all,  while  the  solemnity  of  his  allu- 
sions to  the  sickness  of  Mrs.  Burch's  brother,  and  her  devotion  to 
him  until  death,  drew  tears  from  many  a  manly  eye.  It  was  at 
this  point  in  his  testimony  only  that  Mrs.  Burch  withdrew  from 
him  her  earnest  gaze,  and  then  her  eyes  were  uuffused  with  tears — 
tears  that  were  with  difficulty  suppressed  when  questions  were 
asked  involving  her  honor  or  her  shame. 

This  closed  the  evidence. 

ARGUMENT   OP   MB.    BECKWTTH. 

Mr.  Beckwith  commenced  by  saying  there  was  no  duty  in  life 
affording  so  much  pleasure  as  that  of  defending  the  innocent.  It 
was  with  peculiar  pleasure  that  he  appeared  to  defend  not  only  an 
innocent  woman,  but  her  innocent  children,  her  aged  mother  and 
her  relatives.  He  did  not  say  that  this  lady  had  not  done  wrong — 
that  she  had  not  grievously  wronged  her  husband.  But  he  would 
say  that  she  had  not  committed  adultery.  He  would  call  attention 
to  her  own  statement  on  oath.  After  recapitulating  the  intercourse 
with  Boyd,  she  herself  says  that  she  had  wronged  and  injured  her 
husband  by  receiving  attentions  from  gentlemen  other  than  him- 
self, but  she  hoped  and  believed,  up  to  the  time  of  the  reception  of 
the  letter  from  Valentine,  that  she  would  be  forgiven.  But  though 
it  was  a  subject  of  the  deepest  humility  on  her  part,  it  was  no  evi- 
dence that  she  had  committed  adultery.  She  asked  that  this  foul 
stain  should  not  be  put  upon  her.  He  regretted  that  the  learned 
counsel  had  not  told  the  whole  truth  in  complaining  of  vile  asper- 
sions on  the  complainant. 

They  were  asked  to  believe  that,  at  a  time  when  there  was  death 
in  Mrs.  Burch's  own  house  and  the  house  of  her  relatives,  she  had 
been  guilty  of  crime;  when  she  was  prostrated  and  worn  out,  her 
own  brother  dead  in  the  house,  her  sister's  child  at  the  point  of 
death.  That  was  the  time  that  she  was  charged  with  criminal  con- 
duct. It  was  not  only  cruel,  but  brutal  and  inhuman.  He  would 
ask  them  whether  it  was  reasonable  to  believe  that  this  lady  was 
guilty  at  any  time  yet  alluded  to. 

What  led  to  the  rupture  of  this  family  ?  On  Wednesday  morn- 
ing Mrs.  Burch,  after  her  husband  had  spoken  to  her  about  meet- 


BURCH  DIVORCE  CASE.  533 

ing  Boyd,  and  before  the  meeting  in  the  library,  writes  a  note  to 
her  husband,  telling  him  that  she  had  done  wrong.  The  most  we 
have  of  the  interview  in  the  library  is  that  "mother  was  sitting  on 
father's  lap,  and  both  were  crying*"  That  was  when  Mr.  Burch 
detailed  the  whole  of  her  indiscretion  to  her  husband.  Margaret 
heard  them  on  Wednesday  night,  when  she  heard  Mrs.  Burch  say, 
"Oh,  no,  father;  don't,  father;  no,  father — you  choke  me."  There 
was  nothing  suspected  as  to  Stuart  at  that  time.  The  only  accusa- 
tion was  Mrs.  Burch's  intimacy  with  Boyd,  from  October,  1859,  to 
January,  1860.  What  did  he  do  in  chiding  her  for  her  intimacy 
with  Boyd  ?  Not  content  with  charging  her  with  Boyd,  he  charges 
her  that  her  youngest  child  is  an  illegitimate  child,  and  that  with- 
out having  the  slightest  suspicion  of  Stuart  or  anybody  else.  True, 
she  had  done  wrong,  but  that  was  done  long  after  the  birth  of  the 
child.  Was  that  kind  and  considerate  in  him  to  make  that  charge  ? 
Mrs.  Burch  was  screaming  so  that  she  could  be  heard  through  those 
massive  doors.  Her  ejaculations  went  forth,  "  No,  father;  don't, 
father:  it  is  not  so."  Fannie  Burch  would  have  them  believe  that 
they  heard  the  cries,  the  screams  and  the  groans — but  it  was  Min- 
nie crying.  Mrs.  Burch  had  confessed  everything  in  regard  to 
Boyd.  She  had  written  to  Boyd,  requesting  him  to  send,  in  fact, 
to  her  husband  everything  that  he  had.  But,  if  Mr.  Burch  wished 
to  threaten  Boyd,  why  not  threaten  him  himself  ?  Any  honorable 
man  would  do  it  himself,  and  not  compel  his  wife  to  do  it.  Burch 
not  only  required  her  to  write,  but  he  dictated  the  letter. 
'  Was  a  confession  extorted  under  such  circumstances  of  any  value  ? 
The  law  in  kindness  had  said  that  every  confession  should  be  free 
and  unconstrained.  Yet  at  this  frail  lady,  that  he  could  hold  as  a 
child,  he  rushes  into  the  room  and  shakes  his  fist  in  her  face.  Then 
he  says  he  was  "  led  by  light  from  heaven  ! "  Was  it  in  shaking 
his  fist  in  her  face,  or  in  "  affecting  more  knowledge  than  he  pos- 
sessed?" The  slightest  coercion  would  render  a  confession  of  no 
value.  It  was  not  his  province  to  read  law  to  them.  Their  prov- 
ince was  to  judge  of  the  facts.  They  would  be  instructed  by 
the  court  that  if  these  confessions  were  produced  by  coercion,  how- 
ever slight,  they  should  be  disregarded. 

ARGUMENT   OP   ME.    PABNSWORTH. 

Mr.  Farnsworth  commenced  by  commenting  upon  the  import- 
ance of  the  case,  in  which  were  involved  interests  of  such  mag- 
nitude. He  regretted  the  publicity  of  a  trial  of  this  kind,  of 
domestic  quarrels  and  private  letters;  in  any  event  it  was  disgrace- 
ful— it  benefited  nobody.  But  he  came  to  the  argument  with  an 


5$4  MODERN  JURY  TRIALS. 

interest  in  its  magnitude.  He  wished  never  again  to  sit  in  a  court- 
house and  witness  so  much  agony  as  he  had  witnessed  here.  They 
might  not  give  him  credit  for  it,  but  he  told  them  that  he  knew  he 
was  on  the  right  side.  Complaint  had  been  made  of  the  treatment 
of  Mr.  Burch  and  his  witnesses,  but  he  should  not  be  deterred  from 
a  proper  examination  of  the  testimony  of  the  witnesses,  and  from 
characterizing  the  conduct  of  Mr.  Burch  as  it  deserved.  Mr. 
Hoyne's  statement  that  he  had  been  warned  to  leave  town  because 
he  engaged  in  this  case,  was  on  a  par  with  Mr.  Burch's  frightening 
the  witnesses.  It  seemed  that  the  counsel  were  walking  in  trepi- 
dation the  streets  of  Chicago,  afraid  that  Coming's  money  will 
hire  some  assassin  to  leave  their  bodies  by  the  wayside.  If  neces- 
sary, he  would  give  Mr.  Hoyne  a  bond  that  Corning  should  not 
harm  him,  and  if  that  would  not  do,  he  would  get  him  a  body- 
guard. It  was  somewhat  strange  that,  while  Mr.  Hoyne  accused 
the  witness  Carpenter  as  a  scoundrel,  he  (Hoyne)  was  astonished 
that  Carpenter  was  not  his  best  friend.  As  to  the  denunciation  of 
Stuart,  the  question  was,  had  he  told  the  truth  on  this  stand  ?  And 
when  his  character  for  truth  and  veracity  was  proved  to  be  good, 
the  law  presumed  that  he  did  not  suddenly  turn  round  and  perjure 
himself.  But,  if  the  prosecution  questioned  Stuart's  truth  and 
veracity,  why  was  it  that  they  had  not  brought  witnesses  to  attack 
his  reputation  in  that  regard  ? 

The  jury  were  the  only  judges  as  to  how  much  the  evidence 
proved.  Mr.  Hoyne  had  illustrated  the  strength  of  the  circum- 
stances by  the  strands  of  a  rope,  one  of  which  was  weak,  but  all 
combined  were  strong.  But,  could  they  condemn  a  woman  on  cir- 
cumstances, each  of  which  was  worthless  ?  How  could  they  deter- 
mine the  value  of  the  whole  body  of  circumstances  without  weigh- 
ing each  one  by  itself  ?  As  to  Mrs.  Burch  sending  delicacies  to 
Stuart,  all  they  knew  about  it  was  what  Mr.  Stuart  told  them.  If 
the  delicacies  were  not  sent  through  Mrs.  Farnam,  why  did  they 
not  prove  by  Mrs.  Farnam  that  she  did  not  carry  them  ?  Mr.  Mil- 
ler had  so  much  admiration  for  the  witness  Layton  that  he  followed 
his  peculiar  form  of  speech,  "I  think  he  were."  He  would  not  have 
been  surprised  to  hear  him  saT  "he  sawed  him  up  stairs."  Layton 
commenced  his  testimony  with  a  lie  about  the  clock;  they  had 
proved  it  to  be  a  lie  by  the  testimony  of  the  expressman  as  to  the 
time  the  clock  was  delivered.  The  girls  contradicted  him  as  to  the 
closing  of  the  house,  and  it  turned  out  that  half  the  times  when  he 
pretended  to  have  heard  up  three  pair  of  stairs  Stuart  going  out  the 
front  door,  he  was  sleeping  out  in  the  barn.  It  would  take  a  great 
many  witnesses  like  Charles  to  consign  Mrs.  Burch  to  everlasting 


BURGH  DIVORCE  CASE.  535 

infamy.  As  to  the  deposition  of  Margaret  being  entitled  to  more 
credence  than  her  testimony,  was  it  not  her  testimony  on  the  stand 
that  made  the  impression  ?  Was  it  because  she  was  under  the  influ- 
ence of  Mr.  Burch,  because  he  told  her  she  was  to  stick  to  her 
statement,  and  because  she  was  afraid  that  she  would  be  poisoned 
by  some  one  hired  with  Coming's  money?  They  complained  that 
their  witnesses  and  client  were  abused,  and  yet  slandered  Mr.  Corn- 
ing because  he  had  the  nobility  to  defend  his  niece. 

Mr.  Farnsworth  continued  his  reply  to  Mr.  Hoyne.  It  should  be 
recollected,  he  said,  that  on  the  night  that  the  young  ladies  came 
from  the  East,  although  Stuart  spent  the  evening  with  Mrs.  Burch 
her  brother,  Horace  Turner,  was  also  there,  and  Mr.  Stuart  left  the 
house  in  his  company.  They  were  asked  to  believe  that  a  crime 
was  committed  because  that  was  an  opportunity,  but  he  detested 
that  prying  jealousy  that  would  pick  up  any  trivial  act  of  a  man 
or  woman  and  magnify  it  into  a  crime.  But  put  any  man  in  the 
court-house  on  the  confessional,  and  make  him  tell  all  the  occasions 
when  he  manifested  a  liking  for  any  woman  not  his  wife,  what 
would  be  the  result  ?  Miss  Fannie  Burch  testifies  that  at  Mary 
Kinsey's  wedding  Stuart  and  Mrs.  Burch  sat  upon  the  sofa — well 
that  was  horrid.  He  went  to  a  sociable  the  other  evening,  and  sat 
on  a  sofa  with  a  lady,  and  his  wife  was  not  there  !  If  it  was  the 
law  of  the  land  that  he  could  not  do  that,  he  begged  them  not  to 
tell  his  wife.  Then  Mr.  Miller,  in  that  awfully  solemn  voice,  said 
they  played  checkers  or  backgammon  with  the  board  on  their 
knees.  Backgammon  was  the  parson's  game;  he  had  played  it  in 
parson's  houses,  and  with  ladies  with  the  board  on  their  knees, 
and  never  thought  about  anything  but  the  game.  As  to  Mary 
Spaulding,  her  French  was  no  doubt  better  than  her  testimony. 
Was  it  likely  that  a  lady  writing  such  a  card  as  Miss  Spaulding- 
says  she  found,  would  leave  it  on  the  floor,  or  that  the  gentleman 
who  received  it  would  carelessly  drop  it  there,  or  that  if  it  was 
dropped,  it  would  not  have  been  swept  out  by  the  servant  girls  who 
cleaned  the  room  ?  Mr.  Hoyne  would  have  them  believe  that  death 
itself,  sitting  on  the  form  of  her  brother,  had  no  terrors  for  her, 
and  at  that  time  she  was  practicing  a  trick  to  get  her  husband  out 
of  the  room,  so  that  she  could  have  an  improper  interview  with 
Mr.  Stuart.  He  was  astonished  that  while  complaining  of  their 
harshness  toward  Mr.  Burch,  counsel  should  have  the  audacity  and 
heartlessness  to  press  that  charge  upon  a  woman  already  heart- 
broken. Mr.  Stuart's  visits  did  not  stop  at  that  time;  he  visited 
the  house  after  that,  and  his  visits  were  visits  of  condolence. 
When  he  was  in  the  room  with  Mrs.  Burch  and  her  child,  there 


536  MODERN  JURY  TRIALS. 

were  thre*  others  in  the  room,  including  Mr.  Burch  himself.  It 
was  out  of  such  contemptible  shreds  and  patches  as  this  that  Mr. 
Hoyne  made  his  rope — it  was  a  rope  of  sand. 

The  charge  was  brought  that  Stuart  was  a  licentious  man,  and 
Miss  Fannie  let  slip  from  her  tongue  scandalous  stories  about 
respectable  ladies.  Fannie  had  an  itching  ear  for  scandals,  and  a 
precocious  taste  for  it.  But  Stuart's  character  was  not  so  bad,  if 
Mr.  Burch  could  say  of  him,  "  I  have  heard  these  stories,  and  they 
are  all  lies."  Mr.  Stuart's  position  as  a  lawyer  of  prominence,  a 
member  of  Congress,  and  the  friend  and  intimate  acquaintance  of 
the  most  respectable  citizens — a  man  of  family,  with  grown-up 
daughters — gave  him  a  character.  They  could  not  at  one  bound 
conclude  that  Stuart  was  a  corrupt  man.  It  was  said  that  Stuart's 
testimony  was  a  fine  piece  of  acting;  but  the  counsel  would  admit 
that  the  finest  piece  of  acting  was  always  truest  to  nature,  and  felt 
what  he  was  acting.  They  must  judge  by  Stuart's  acting  and  man- 
ner and  words  upon  the  stand  whether  he  took  the  Word  of  God, 
to  perjure  himself.  His  testimony  struck  the  counsel  for  the  com- 
plainant dumb.  He  believed  Stuart's  testimony  would  remove  the 
last  vestige  of  doubt  as  to  Mrs.  Burch's  innocence — even  from  the 
mind  of  Mr.  Burch  himself,  if  it  was  not  for  that  infernal  will  of 
his — that  he  "had  made  this  charge  and  would  stick  to  it." 

But,  harmonizing  the  testimony  of  all  the  witnesses,  they  could 
find  a  verdict  for  the  defendant — though  they  could  not  find  a  ver- 
dict for  Mr.  Burch  without  believing  that  Stuart  and  Burrill,  and 
Winch  and  Carpenter,  and  Long  and  Peck  had  committed  perjury. 
As  to  the  confessions  being  sworn  to,  they  were  made  under  cir- 
cumstances which  could  not  make  them  credible,  especially  since 
Mrs.  Burch,  in  her  answer,  had  sworn  that  the  statements  in  the 
confessions  were  false. 

Talk  about  the  inquisition,  said  Mr.  Farnsworth,  I  would  like  to 
know  where  you  would  find  a  worse  inquisition  than  that  castle  of 
Burch's  was  on  that  occasion.  This  dear  little  woman,  with  her 
wan  cheek  and  tearful  eye;  without  friends  or  consoler;  not  a  soul 
there  sympathizing  with  her  but  her  little  children;  compelled  to 
confess — compelled  to  sign  papers  and  statements  for  peace  !  O, 
what  a  picture  !  "  O,  hasten  with  your  verdict,  and  vindicate  this 
injured  mother." 

MB.  BROWNING  spoke  eloquently  for  the  defense  as  follows: 

Alluding  to  the  scene  in  the  death  room  of  Mrs  Burch's  brother, 
Mr.  Browning  said:  Stuart  stood  there — by  the  weeping  sister,  and 
while  he  stood  there,  the  eye  of  the  spy  fell  upon  them.  There  lay 


BURCH  DIVORCE  CASE.  537 

the  brother  stark  and  stiff  in  the  icy  embrace  of  death.  Her  heart 
was  in  the  coffin.  Her  thoughts  were  busied  with  her  griefs  and 
with  the  terrible  anguish  that  had  overwhelmed  her  aged  and  weep- 
ing mother.  She  stood  in  the  very  presence  of  the  king  of  terrors, 
with  the  stricken  victim  before  her — and  that  victim  her  brother. 
She  stood  as  it  were  upon  the  threshold  of  God's  judgment  seat — 
amid  surroundings  which  would  have  rebuked  and  chastened  the 
fiercest  lust  that  ever  burned  in  a  Cyprian's  bosom.  And,  at  such  a 
time  as  this,  and  in  such  circumstances  as  this,  the  husband  to  whom 
she  had  given  her  maiden  love — who  had  enjoyed  her  youthful 
charms — and  become  the  father  of  her  children — he  charges  her 
with  lewd  and  lustful  communication  with  the  man  he  would  now 
have  you  believe  had  already  debauched  her.  Oh,  gentlemen,  it  is 
fearful — how  the  brain  grows  giddy,  how  the  heart  grows  faint 
from  these  horrible  details — how  strong  men  sicken  and  shrink 
from  the  bare  recital.  What,  then,  gentlemen,  must  have  been  the 
moaning  anguish  of  this  poor,  frail,  trembling  little  woman,  when 
for  the  first  time  her  husband  charged  upon  her  the  damning  deed? 

After  commenting  upon  the  evidence  as  to  Mr.  Burch's  having 
threatened,  and  choked,  and  frightened  the  witnesses,  and  analyz- 
ing the  testimony  of  Boyd — "the  silly,  brainless  coxcomb,  with 
about  a  handful  of  the  puppy  in  the  mixture,"  Mr.  Browning  came 
to  the  time  of  the  alleged  discovery  of  Mrs.  Burch's  guilt.  Mr. 
Burch,  he  said,  commenced  the  case  with  a  lie.  He  told  his  wife 
that  he  knew  of  things  going  on  in  the  house  which  he  knew  she 
did  not  know  he  knew.  If  that  was  the  fact,  why  had  he  not 
warned  his  wife  ?  The  fact  was,  there  was  nothing  going  on,  and 
he  knew  there  was  nothing  going  on. 

In  the  very  first  interview  of  Mr.  Burch  with  his  wife,  after  he 
had  got  the  dates,  Fannie  hears  Mrs.  Burch  say,  "Father,  I  am 
not  guilty."  The  first  words  that  rang  through  the  house,  when 
he  first  tried  to  make  her  give  him  a  confession  of  guilt  which  he 
himself  had  written,  was,  "  Father,  I  am  not  guilty."  Fannie  says 
when  he  came  out  he  was  "  pale,  excited,  exhausted."  What 
exhausted  him  ?  It  was  his  physical  efforts  to  extort  from  her,  by 
"thrusting  his  clenched  fist  in  her  face,"  and  saying,  "you  shall 
confess"  that  full  catalogue  of  crimes.  All  that  was  heard  during 
these  interviews  between  Mr.  Burch  and  his  wife,  was  the  protesta- 
tions of  Mrs.  Burch,  and  her  exclamations  protesting  her  innocence, 
that  was  all  that  was  heard,  though  Miss  Fannie  does  testify  to 
some  things  that  she  says  Mrs.  Burch  told  her. 

Mr.  Browning  reviewed  at  length  the  scenes  in  Mr.  Burch's  house 
during  the  Monday  and  Tuesday  when  the  alleged  confessions 


538  MODERN  JURY  TRIALa 

were  obtained,  commenting  upon  Mr.  Burch's  promises  that  his 
wife  should  stay  until  her  uncle  came,  and  that  nobr-dy  but  himself 
should  ever  see  the  confessions  which  she  made.  Mr.  Burch  had 
put  it  in  his  own  handwriting,  that  he  had  obtained  this  confession 
by  pretending  that  he  had  more  knowledge  than  heposses'sed;  that 
he  had  the  knowledge  of  her  guilt,  and  that  there  was  no  need  of 
her  denying  it.  Oh!  the  miserable  delusion  that  so  works  in  and 
through  us,  to  utter  a  lie  for  any  purpose.  But  she  denied  her 
guilt  a  hundred  times,  as  he  says;  she  would  not  do  it,  but  he  lied — 
he  basely  lied  to  her — and  she  signed  them — she  had  written  one 
and  torn  it  up;  and  Tuesday  night,  after  they  had  got  from  her 
what  they  supposed  was  the  incontestable  evidence  of  her  guilt, 
though  they  knew  she  was  not  guilty,  she  ran  to  Margaret's  room, 
and  frantically  snatched  her  child,  and  said,  "Oh  Margaret,  I  must 
go  away  to-morrow;"  and  Mr.  Burch  followed  her  and  took  Min- 
nie away  from  her,  and  dragged  her  to  his  room  and  shut  the  door. 
Was  there  ever  brutality  like  that?  And  when  she  came  to  his 
room  that  night  to  see  her  child  for  the  last  time,  he  said,  "  Go 
away — I  can't  endure  it."  But  she  could  endure  it.  And  Mr. 
Burch  had  come  to  them  and  asked  them — men  with  hearts  in  their 
bosoms — to  give  a  verdict  that  should  indorse  such  brutal  conduct. 
God  pity  the  women  of  this  land,  if  such  verdicts  were  to  be  ren- 
dered. 

If  the  testimony  of  Miss  Fannie  Burch  was  to  be  believed,  Mrs. 
Burch  was  wild,  maniacal.  It  was  almost  idiotic — it  was  the  dri- 
velling of  an  infant  for  a  woman  under  such  circumstances  to  say 
"  shall  I  take  this  gray  wrapper — it  will  be  so  pretty  when  I  am 
sick  ?" 

It  was  enough  to^make  the  blood  run  cold  and  icy  in  one's  veins 
to  hear  the  recital  of  the  incomprehensible  coldness  and  brutality. 
The  sound  of  his  wife's  footsteps  had  hardly  died  away  from  nis 
doorstep,  when  he  goes  to  the  servant  and  insults  her  by  asking, 
"How  much  money  did  Stuart  give  you?"  and  that,  too,  in  a 
moment  that  would  have  overwhelmed  any  other  man  on  God's 
earth  with  sorrow  and  grief,  and  bowed  him  down  with  grief. 

Mr.  Burch,  of  all  men,  ought  to  desire  a  verdict  of  "not  guilty" 
at  your  hands;  of  all  men  he  ought  most  to  rejoice  at  the  verdict 
that  would  wipe  out  the  foul  stain  from  the  mother  of  his  children, 
and  that  will  enable  them  to  go  over  the  world  with  an  occasional 
gleam  of  sunlight  to  illumine  their  pathway — not  followed  through 
all  their  weary  pilgrimage  here  with  the  overshadowing  of  a 
mother's  infamy  and  disgrace.  And  when  he  comes  to  his  last  hour 
— reposes  upon  his  bed  of  death — and  finds  himself  struggling  with 


BURGH  DIVORCE  CASE.  639 

the  monster  who  is  too  strong  for  him,  to  whose  assaults  he  will 
have  to  bow — with  his  'last  dying  breath  he  will  breathe  prayers 
with  blessings  upon  your  names  for  vindicating  his  wife  and  chil. 
dren  from  this  foul  stain.  Gentlemen,  I  am  done.  There  is  the 
poor,  heart-broken,  widowed  mother,  whose  grey  hairs  yon  bring 
with  sorrow  to  the  grave  if  you  indorse  this  unrighteous  judgment 
against  her  suffering  daughter.  There  is  the  poor,  frail,  timid, 
trembling  and  crushed  little  woman.  I  give  her  into  your  hands. 
Take  them  both.  Do  with  them  in  that  way  that  you  will  be  able 
to  answer  to  the  great  Judge  of  all  hearts  when  you  come  to  ren- 
der an  account  of  the  deeds  that  you  have  done  in  the  body.  And 
if  you  hope  to  lay  your  heads  upon  the  dying  pillow  in  peace,  I 
implore  you  by  all  that  is  sacred  to  the  human  heart  on  earth,  not 
to  give  your  indorsement  to  this  foul,  wicked,  and  most  horrible 
transaction  that  this  country  of  ours  has  ever  witnessed,  and  may 
God  in  his  mercy  defend  us  from  ever  having  to  pass  through  such 
another  ordeal  as  the  trial  of  this  case  has  been.  Gentlemen,  I  sur- 
render them  into  your  hands — take  them  and  deal  with  them  mer- 
cifully as  you  hope  that  God  will  deal  with  you  mercifully  hereaf- 
ter. 

CLOSING   ARGUMENT   OF   JOHN   VAN   AKMAN   FOB   PLAINTIFF. 

Gentlemen  of  the  Jury :  The  counsel  for  the  defense  in  this 
case  have  assured  you  in  very  emphatic  terms  that  they  stand  here 
in  defense  of  the  innocent.  Now,  assurances — mere  affirmation  by 
counsel — can  weigh  but  little.  One  thing  you  will  readily  believe: 
Either  my  client  is  the  most  heartless  and  desperate  villain,  or  the 
most  wronged  and  oppressed  man  that  ever  appeared  in  a  court  of 
justice.  He  either  deserves  your  warmest  sympathies  or  your  deep- 
est execrations.  If,  as  he  alleges,  his  home  has  been  entered  by  the 
seducer,  and  his  sacred  rights  as  a  husband,  his  holiest  feelings  as  a 
parent,  invaded  and  trampled  upon,  his  prospects  of  domestic  hap- 
piness blighted  and  ruined,  then  he  has  suffered  one  of  the  deepest 
wrongs  that  man  is  capable  of  suffering  or  inflicting.  And  if  he 
cannot  ask  your  sympathy,  he  may  at  least  demand  at  your  hands 
that  poor  justice  which  the  law  affords  him. 

What  is  this  ?  Gentlemen,  you  are  husbands,  you  are  fathers, 
you  know  in  all  their  characteristics,  you  understand  and  have 
experienced,  and  now  feel,  the  full  force  of  all  the  relations  involved 
in  this  case;  you  have  each  of  you  a  home;  by  your  own  firesides  a 
pattern  that  shall  never  fail  to  teach  you  what  a  dutiful,  affection- 
ate, and  virtuous  wife  is.  And  you  can,  by  a  moment's  reflection, 
by  consulting  your  own  hearts,  at  once  understand  and  feel  the  jus- 


540  MODERN  JURY  TRIALS. 

tice  or  injustice  of  this  law,  which  for  the  violation  of  chastity 
should  deprive  your  wives  of  the  rights  and  privileges,  the  happy 
privileges,  the  invaluable  advantages,  which  they  now  enjoy.  I 
cannot  explain  to  you  why  it  is  that  you  could  not  live  for  one  hour 
with  a  woman  who  had  violated  her  marriage  vow.  If  you  do  not 
understand  it,  I  cannot  make  it  clearer. 

No  more  can  I  explain  to  you  many  other  of  the  hidden  myster- 
ies of  the  human  heart.  It  is  a  feeling  implanted  in  the  breast  of 
man  by  that  God  who  created  him.  Implanted  too,  before  the 
fall.  I  beg  you  to  remember  that  marriage  is  an  institution 
ordained  by  the  Almighty  Himself;  it  antedates  the  entrance  of  sin 
into  the  world.  It  was  in  the  purity  of  their  original  state  that 
the  Almighty  instituted  marriage  between  the  first  pair.  Then  it 
was  that  he  implanted  in  the  one  and  the  other  the  principle 
of  chastity.  I  cannot  explain  it;  nor  can  I  explain  your  love  of 
offspring.  I  can  explain  none  of  these  beautiful,  sublime,  mysteri- 
ous affections  and  sympathies  which  constitute  the  source  of  all 
enjoyment.  But  you  know,  you  feel,  and  so  do  I,  that  from  the 
hour  that  our  wives  should  have  been  proven  to  us  to  be  guilty  of 
a  breach  of  the  marriage  vow  in  the  particular  of  chastity,  though 
our  hearts  should  break,  separation  must  come.  Now  it  must  not 
be  supposed  that  persons  bound  together  by  these  tender  ties, 
especially  where  there  be  children,  can  separate  without  scenes  of 
the  deepest  anguish.  You,  sir,  I  ask  you,  imagine  for  a  moment 
that  between  this  and  the  setting  of  the  sun  which  has  now  risen, 
it  should  become  necessary,  for  a  similar  cause,  to  break  up  that 
institution  around  which  all  your  affections,  your  happiness,  and  all 
your  feelings  now  center.  I  ask  if  you  can  imagine  it  ?  I  ask  if 
the  wife  of  your  bosom  had  betrayed  your  honor,  had  trampled 
upon  your  rights,  if  she  had  treacherously  admitted  others  to  the 
enjoyment  of  privileges  which  both  God  and  the  law  had  made 
proper  to  yourself  alone — I  ask  you,  if  all  this  had  been  proved, 
would  it  not  carry  to  your  heart  the  deepest  anguish  to  separate 
from  her?  And  yet  you  must  do  it;  it  is  inevitable. 

What  is  the  proof  in  this  case  that  relates  to  that  subject  ?  It  is 
plain,  it  is  simple,  it  is  conclusive;  it  cover  the  whole  ground  and 
explains  to  you  every  step  of  the  whole  process.  And  when  that 
proof  is  considered,  you  see  the  whole  transaction  perfectly  repro- 
duced. It  has  so  happened  that  by  the  examination  of  the  wit- 
nesses who  were  present  in  that  house  from  the  time  that  this  inves- 
tigation first  commenced — on  the  Tuesday  of  the  week  before  Mrs. 
Burch  left  Mr.  Burcu's  house  down  to  her  final  departure — you  see 
every  single  event  of  that  most  painful  domestic  tragedy  fully 


BURCH  DIVORCE  CASE.  541 

reproduced  before  you.  You  see  every  step  taken  by  the  husband, 
you  can  almost  hear  the  throbs  of  the  heart,  you  can  almost  fancy 
that  you  hear  the  sighs  and  sobs  of  anguish  that  resounded  through 
those  palatial  halls.  It  was  a  touching  spectacle.  It  was  a  most 
moving  scene,  and  it  has  furnished  the  subject  for  the  most  pathetic 
declamations.  In  the  whole  history  of  law  trials,  perhaps  there 
has  never  occurred  scenes  so  well  adapted  to  move  the  heart,  to 
moisten  the  eye  of  any  man  of  sensibility,  as  those  which  occurred 
in  that  house.  And  well  have  these  gentlemen  done  to  avail 
themselves  of  those  pathetic  scenes  to  draw  your  attention  from  the 
facts  in  the  case. 

Most  adroitly  and  artfully  have  they  wrought  upon  your  feelings 
until  they  had  in  some  degree  blunted  your  judgment  and  silenced 
your  understandings.  I  have  a  different  task.  I  shall  ask  you  to 
regard  the  grief,  sorrow  and  sufferings  of  that  week  as  the  natural 
and  legitimate  consequences  of  the  crime  which  had  been  commit- 
ted. I  shall  ask  you  to  consider  them  precisely  as  scenes  that  must 
always  occur  when  this  institution  around  which  cluster  the  fofrd- 
est  hopes  of  man,  the  dearest  and  most  sacred  feelings  of  the  heart, 
is  prostrated  and  overthrown.  It  may  never  in  all  time  happen, 
no  matter  whether  the  house  in  which  it  occurs  is  the  humble  cabin 
on  the  frontier,  or  the  proud  residence  of  some  wealthy  aristocrat 
of  your  cities — without  these  scenes  of  sorrow  whenever  for  any 
cause  the  ties  that  bind  parents  and  child,  husband  and  wife,  are 
suddenly  and  violently  sundered,  until  the  motives  of  the  human 
heart  are  changed,  until  the  sublime  and  gushing  feelings  of  affec- 
tion which  unite  families  shall  be  succeeded  by  the  cold  precepts  of 
stoical  philosophy,  scenes  precisely  such  as  have  been  so  pathetic- 
ally  described  to  you  by  counsel  upon  the  other  side.  I  shall  there- 
fore ask  you  to  look  upon  these  scenes  as  the  legitimate  conse- 
quences of  the  separation,  the  painful  separation,  which  had  become 
necessary  between  these  parties.  They  prove  nothing  in  reference 
to  the  truth  of  the  charges.  I  ask,  gentlemen,  do  they  in  reason 
suppose  this  woman  to  be  guilty  ?  Would  her  grief  on  her  separa- 
tion from  her  children,  on  leaving  her  home,  on  bidding  adieu  to 
all  the  scenes  which  had  given  her  pleasure  for  so  many  years,  been 
less  than  if  she  were  innocent  ?  Would  a  guilty  woman's  anguish 
be  less  on  account  of  her  guilt?  I  ask  you,  as  men  of  sense  and  of 
reason,  what  have  the  scenes  of  anguish  that  occurred  in  that  house 
to  do  with  the  real  merit  and  truth  of  this  case?  And  why  have 
the  counsel  labored  through  long  hours  to  paint  you  these  scenes  ? 
For  the  plainest  purpose  imaginable — in  the  hope  that  by  them  to 
touch  Mr.  Burch. 


542  MODERN  JURY  TRIAL?. 

There  is  a  great  choice  in  men,  or  things  calling  themselves  men. 
But  of  all  the  things  that  I  have  been  called  upon  and  compelled  to 
class  as  human,  that  Boyd  is  certainly  the  most  contemptible,  in 
moral  character,  personal  appearance,  and  everything  that  makes 
him  up  the  puppy  and  coxcomb  that  he  is.  That  Mr.  Bnrch  should 
feel  nettled  and  annoyed  I  am  not  at  all  surprised.  You  and  I 
would  have  felt  the  same.  For  it  was  not  one  instance  only.  You 
will  recollect  that  this  intimacy  had  been  going  on  for  three  months 
most  furiously.  Boyd  had  been  at  that  house  night  and  day;  he 
had  met  Mrs.  Burch  in  all  manner  of  places,  and  it  had  not  escaped 
Mr.  Burch's  notice.  And  here  he  was  with  her  again — "  her  usual 
escort.**  And  Mr.  Burch  undoubtedly  thought  when  he  went  home 
that  he  would  put  a  final  stop  to  it.  He  says  to  his  wife,  "Madam, 
where  have  you  been  to-day  ?  "  She  answers,  "  I  have  been  to  such 
a  place.**  "  Whom  have  you  seen  1"  "I  have  seen  such  and  such 
and  such  a  person  " — mentioning  every  one  she  has  seen,  says  the 
witness,  except  Boyd.  Mr.  Burch  said,  "  As  I  came  home  to  din- 
ner to-day,  a  friend  told  me  he  had  seen  you  pass  with  your  usual 
escort.*'  "Oh,  yes,  yes,"  she  says,  "Mr.  Boyd  did  accompany  me 
home.  I  forgot  that,  father.*'  Now  observe,  on  her  way  home, 
after  she  had  parted  with  Boyd  within  a  few  minutes  before  that, 
she  had  told  Fannie  not  to  mention  the  fact  that  she  had  been  with 
Boyd.  Mark  what  follows:  Mr.  Burch  says  little;  but  his  appear- 
ance indicates  that  he  is  not  quite  satisfied.  The  denial,  and  the 
forced  confession  led  him  to  suspect  treachery  there.  For  the  first 
time,  perhaps,  in  the  whole  course  of  his  twelve  years  of  married 
life,  the  unwelcome  and  painful  suspicion  passed  athwart  his  mind 
like  a  lurid  flash  across  the  clear  sky,  that  his  wife  was  cheating 
him  in  the  dearest  possible  respect.  He  says  little;  it  is  not  a  feel- 
ing to  be  expressed.  But  it  is  one  to  be  remembered,  if  you  shall 
ever  experience  that  sentiment  in  reference  to  your  wife,  down  to 
the  hour  when  your  heart  ceases  to  beat;  you  will  never  forget  it. 
Suspect  the  innocence  and  frankness  of  the  woman  that  has  lain 
upon  your  breast  for  twelve  years;  the  woman  who  has  shared  your 
deepest  sentiments,  your  closest  feeling  ;  the  mother  of  your  chil- 
dren ;  her  in  whom  your  very  soul  is  garnered  up — compelled  to 
suspect  her  !  And  suspicion  is  always  more  terrible  than  absolute 
certainty.  Mr.  Burch  was  silent;  well  he  might  be.  The  knell  of 
his  domestic  peace  was  struck,  when  that  suspicion  entered  his 
mind.  When  I  have  just  cause  to  suspect  my  wife,  gentlemen  of 
the  jury,  our  days  of  happiness  are  numbered;  our  days  of  wedded 
life  will  soon  pass  by. 

She  did  deny  it  a  hundred  times.     Mr.  Burch  told  Pruyn  in  his 


BURCH  DIVORCE  CASE.  543 

letter  that  she  had  told  him  a  thousand  lies.  Would  you  expect 
that  she  would  admit  it  upon  the  first  suggestion  ?  Why  attempt 
to  conceal  a  crime  at  all,  if,  upon  the  first  suggestion,  it  is  con- 
fessed ?  Is  it  in  human  nature  freely  to  confess  such  things  ?  The 
force  of  confessions  is  based  upon  the  fact  that  criminals  are  unwill- 
ing to  confess.  It  is  because  they  are  unwilling  to  confess  and 
prone  to  deny  it,  that  a  confession,  when  obtained,  comes  with  a 
redoubled  force.  Is  not  that  the  reasoning,  the  common  sense  of 
it  ?  Well,  a  struggle,  and  gentlemen  describe  that  aright  ;  a 
struggle  of  moral  force  is  used  for  an  hour,  in  which  the  piercing 
eye  of  a  truthful  man  looked  into  the  soul  of  that  woman,  with 
the  fixed  purpose  of  seeing  there  the  foul  secrets  concealed.  He 
faced  her  then  sternly;  he  says  to  her,  "Madam,  we  have  had 
enough  of  this  prevarication  ;  I  must  know  my  fate  ;  you  are 
guilty  or  innocent,  and  I  must  know  which;  my  very  life  depends 
upon  the  termination  of  this  uncertainty  ;  I  must  know,  and  you 
must  tell  me." 

Gentlemen  of  the  jury,  this  was  a  natural  struggle,  a  struggle 
which  a  man  investigating  a  fact,  armed  with  a  strong  purpose, 
always  meets.  It  is  not  in  the  guilty  heart  of  a  criminal  ever  for 
a  long  time  to  withstand  a  direct  and  positive  accusation,  espe- 
cially when  supported  by  circumstantial  evidence.  And  it  is  a 
peculiarity  of  guilt  that  when  you  suggest  to  the  guilty  ones  a 
circumstance  that  lies  near  their  guilt,  they  at  once,  by  associa- 
tions, believe  that  you  know  the  guilt.  Suppose  a  man  to  have 
been  guilty  of  murder  at  a  given  place.  You  meet  him  and  men- 
tion that  place,  as  was  the  case  in  an  instance  in  New  York  a  year 
or  two  ago,  and  I  cannot  better  illustrate  than  by  a  circumstance. 
A  man  in  some  distant  country  had  committed  the  crime  of  mur- 
der. He  was  a  sea  captain.  Some  time  afterward  he  was  met  in 
New  York  by  an  old  acquaintance,  a  man  who  knew  of  the  mur- 
der, and  who  also  knew  the  perpetrator  of  it.  Eyeing  him  sternly, 
the  man  said  to  him  :  "Sir,  do  you  know  me?"  "Yes,  sir,"  said 
he,  '*'  were  you  ever  in  such  a  country  ?"  His  knees  began  to  shake, 
his  lips  to  pale,  and  before  he  left  the  spot  where  he  stood  he  vol- 
untarily confessed  the  whole  crime.  Why,  it  was  the  power  of 
association.  The  name  of  the  country  suggested  the  crime,  and 
because  the  man  who  addressed  him  knew  that  he  had  been  in  that 
country,  he  thought  he  knew  of  the  crime. 

Take  the  wife  as  she  was — honored,  respected,  courted,  wor- 
shipped, educated,  beautiful,  refined,  apparently  endowed  with 
every  possible  female  excellence  !  Take  her  there,  in  her  pride  of 
place,  how  in  God's  name  could  she  be  led  on  so  ?  Well  might  the 


544  MODERN  JURY  TRIALS. 

girl  ask  that ;  well  may  you  ask  ;  well  may  her  husband  ask;  and 
well  may  she,  poor  outcast,  now  ask,  "  How  was  I  led  on  so  ?" 
What  was  her  reply  ?  The  most  natural  that  could  be  conceived  ; 
and  that  is  one  of  the  evidences  of  the  truth  of  this  relation  ;  its 
coherency,  its  naturalness  ;  each  part  of  it  appears  as  the  legiti- 
mate consequence  of  the  other,  and  the  whole  of  it  forms  a  chain, 
a  connected  series  of  events,  no  one  of  which  could  be  subtracted 
without  destroying  the  continuity  of  the  whole ;  and  the  whole 
makes  up  a  connection  that  defies  human  incredulity.  Fannie  says 
to  her,  "  How  could  you  go  to  the  communion-table  after  all  that 
you  have  done  ?"  That  was  a  patent  question,  too.  She  was  a 
professed  Christian.  She  was  a  member  of  the  Presbyterian 
church  ;  a  steady  attendant  upon  the  ordinances  of  religion.  Well 
might  she  ask,  "  How  could  you  desecrate  those  sacred  symbols 
devoted  to  the  commemoration  of  an  event  so  sublime  and  so 
momentous — how  could  you  do  it  ?"  Hear  her  answer  :  "  For 
eighteen  months,  Fannie,  before  my  return  last  fall,  I  thought  I 
had  reformed  ;  I  thought  I  had  repented." 

Mr.  Burch  is  now  calm.  He  may  well  be  calm.  He  may  sit 
down  there  in  his  lordly  mansion  to  survey  the  ruin  of  his  hopes 
lying  scattered  around  him,  and  know  to  a  certainty  that,  not  by 
his  own  act,  but  by  the  ruffianly  intrusion  and  conduct  of  another, 
has  that  ruin  been  wrought.  I  beg  you  to  look  at  each  step  in  all 
his  conduct  ;  look  at  it  coolly,  carefully,  dispassionately,  in  the 
light  of  your  own  experience,  and  in  the  light  of  justice  and  truth. 
He  resolves  that  he  must  separate  from  that  wife.  She  has  con- 
fessed her  guilt.  He  has  learned  from  other  sources  the  confirming 
circumstances,  which  leaves  that  guilt  beyond  all  earthly  suspicion, 
and  they  must  separate.  Now  the  counsel  on  the  other  side  say, 
"  Why  in  God's  name  is  this  thing  made  public  ?  Why  does  he 
not  go  quietly  to  work  and  get  a  divorce  ?  Why  does  he  not  keep 
it  from  the  knowledge  of  the  public  ?  Why  should  he  publish  her 
shame  and  his  own  ?  Why  not  let  her  live  as  his  wife  ?"  Why, 
gentlemen  of  the  jury,  as  his  wife  she  is  entitled  to  the  custody 
of  those  children  ;  as  his  wife  she  bears  his  name  ;  as  his  wife  her 
shame  is  his  shame  ;  and  not  only  is  that  so,  but  you  might  rest 
well  assured  that  a  woman  of  the  character  that  he  had  then  proved 
her  to  be,  a  woman  that  had  seduced  Boyd  and  led  him  on  to  the 
gross  and  indecent  improprieties  he  had  committed  ;  who  had 
sinned  so  deeply  and  so  often  with  Stuart  ;  who  had  so  wronged 
and  deceived  him,  her  husband,  you  might  well  rest  assured  that 
on  the  first  convenient  opportunity  she  would  have  repeated  the 
offense.  If  Mr.  Burch  could  have  felt  any  confidence  in  her 


BTTRCH  DIVORCE  CASE.  545 

reformation  ;  if  he  could  have  felt  certain  that  what  she  had  done 
would  be  the  last,  he  might  have  felt  disposed,  while  he  separated 
from  her,  to  take  no  steps  for  a  divorce.  But  I  ask  you  if  you 
have  any  right  to  criticise  his  motive  ?  Has  he  not  the  right  to  a 
divorce  ?  I  refer  you  again  to  the  statute  of  your  state.  I  ask 
you  if  it  is  not  better  for  the  community,  better  for  public  and 
private  virtue,  better  for  the  purity  of  private  life  and  the  decency 
of  social  intercourse,  that  the  wife  turned  astray,  that  the  wanton 
wife,  regardless  of  the  interests  of  her  children  and  the  honor  of 
her  husband,  should  be  lopped  off  from  the  family  she  has  dis- 
graced ?  Is  not  that  reprobation  necessary  to  the  inculcation  of 
virtue  and  the  destruction  of  vice  and  licentiousness  ?  Ought  not 
punishment  to  follow  such  an  offense,  and  if  it  should  follow  in 
any  case,  ought  it  not  in  this  ?  What  motive,  I  ask  yon,  could  be 
placed  before  a  human  being  for  a  correct  course  of  living  that 
Mrs.  Burch  had  not  ?  I  ask  you  to  weigh  her  story,  and  consider 
the  motives  that  surround  her. 

I  do  not  know  how  you  may  feel ;  I  cannot  tell  what  your  hearts 
are.  But  I  have  thought,  as  this  painful  case  was  progressing — I 
have  thought  of  my  own  wife  and  my  own  children.  I  think  I 
have  the  usual  fortitude  of  men.  I  suppose  that  I  could  survive 
to  follow  that  wife  to  the  silent  home  from  which  there  is  no 
return.  I  could  see  the  cold  sod  of  the  valley  lie  upon  her  breast, 
and  survive.  I  could  follow  that  child,  whom  I  love  so  well,  to 
the  same  silent  resting-place;  but  if  you  call  upon  me  to  devote 
that  wife  to  shame  ;  if  you  call  upon  me  to  look  upon  her  igno- 
miny and  disgrace  ;  to  see  her  the  plaything  of  a  fiend's  lust  ;  to 
behold  her  false,  ruined,  blighted,  you  call  for  more  than  is  human; 
and,  I  ask  you,  with  what  feeling  is  the  husband  looked  on  when 
it  is  known  that  his  wife  has  betrayed  his  honor  ?  Do  you  wish 
to  be  the  victim  of  such  a  feeling,  such  a  sentiment  ?  Do  you 
wish  to  see  your  wife — could  you  see  her — reduced  to  such  a  con- 
dition ?  Well  might  there  be  weeping  and  wailing  in  that  house. 

The  public  are  not  responsible  for  your  verdict.  You  are  respon- 
sible to  the  parties,  to  your  countrymen,  for  the  just  administration 
of  the  law;  but  higher  and  above  all,  are  you  responsible  to  that 
Being  who  is  the  personification  of  justice  and  of  right,  and  who 
hates  a  lie  and  detests  iniquity.  I  feel  myself  warranted  in  mak- 
ing these  remarks  in  any  case  in  which  similar  outside  circumstances 
prevail.  I  ask  no  aid  from  public  opinion.  I  expect  nothing  from 
public  sympathy.  I  expect,  nay,  I  desire,  that  the  lady  involved 
in  this  case  shall  have  all  that;  not  sympathy,  natural,  human  sym- 
pathy alone,  but  that  principle  of  manly  honor  and  chivalry  which 
35 


548  MODERN  JURY  TRIALS. 

I  should  dread  to  see  extinguished  in  the  human  heart,  warrant  he* 
the  public  sympathy.  But  if  the  lady  had  been  the  wife  of  some 
humble  neighbor  of  yours,  residing  here  in  your  midst,  and  had 
been  guilty  of  the  same  thing,  or  if  the  same  proof  had  existed 
against  her — had  the  wife  of  your  neighboring  farmers,  rn  the  first 
place,  gone  to  the  verge  of  adultery  with  one  lover,  and  then,  after 
a  two  years'  intimacy  with  another  lover,  carried  on  by  stolen  inter- 
views, letters,  meetings,  sought  in  the  absence  of  her  husband — if, 
after  all  that,  she  had  then  repeatedly  confessed  herself  guilty  of 
adultery,  I  submit  to  you  that  she  could  scarcely  have  appeared 
before  you  with  the  imposing  front  presented  by  this  defense.  For 
never  have  I  seen,  in  the  course  of  a  long  practice,  a  party  appear 
in  court  with  so  high-handed,  audacious,  aggressive  a  front. 
Instead  of  apologizing  for  her  own  conduct,  which  she  must  admit 
to  have  been  almost  as  reprehensible  in  any  event  as  actual  adul- 
tery—conduct which  is  admitted  before  you — instead  of  offering 
any  apology  for  that,  or  admitting  even  the  slightest  humiliation 
or  contrition  on  account  of  it,  her  counsel  have  assumed  the  aggres- 
sive, and  stand  here  dealing  every  species  of  anathema  and  insult 
upon  the  injured  husband.  The  position  of  the  accused  and  of  the 
accuser  are  reversed.  They  assume  the  offensive,  and  in  the  most 
high,  insulting  and  haughty  terms  arraign  him,  and  make  him  the 
criminal.  Would  not  a  little  more  humility  become  them?  Would 
not  a  lower  tone  have  been  more  in  taste?  If  your  neighbor's  wife 
had  been  in  similar  circumstances,  how  would  she  have  appeared 
before  you?  How  would  it  become  her  and  them  to  appear?  But 
we  have  no  such  person  here  for  a  defendant,  by  no  means. 

"Plate  sin  in  gold,  and  the  strong  lance  of  justice  harmless  breaks; 
Clothe  it  in  rags,  and  the  pigmy  straw  will  pierce  it." 

Doubtless,  when  the  gentleman  says  he  refrained  from  employ- 
ing me  on  account  of  my  friendship  for  Stuart,  charity  to  me 
required  that  he  should  say  this,  if  he  cared  for  my  feelings.  But 
it  seems  that  he  could  get  better  counsel  than  me — so  he  thought — 
and  so  you  see  he  has.  And  I  should  not  feel  very  badly  if  he  had 
said  so  in  plain  terms,  for  I  never  was  so  vain  as  to  compare  myself 
with  the  counsel.  It  would  not  have  hurt  my  feelings  if  he  had 
told  the  truth,  instead  of  giving  a  false  excuse.  These  are  the 
facts  as  they  appear  here.  Why  the  gentleman  should  bring  them 
before  you  is  a  little  mysterious.  If  he  desired  some  quarrel  with 
me  personally  I  beg  to  decline.  I  really  have  not  time;  nobody 
would  pay  me  for  it;  it  would  not  gratify  me  in  the  least.  Another 
thing:  now  I  have  a  peculiarity  about  that.  I  always  select  my 


BURGH  DIVORCE  CASE.  547 

enemies  with  just  the  same  careful  discrimination  that  I  select  my 
friends.  In  a  friend,  I  require  truth,  candor,  sincerity,  and  honor. 
In  an  enemy,  I  want  a  man  of  some  considerable  qualities,  I  really 
do,  before  I  can  afford  time  to  quarrel  with  him.  I  want  to  be 
quite  sure  that  he  is  a  man  of  some  measure.  And  really  I  do  not 
know  enough  of  the  counsel  who  sought  this  quarrel  with  me  tc  be 
able  to  put  him  in  either  class. 

Speaking  of  Mr.  Stuart  Mr.  Van  Arman  said: 

An  honorable,  high-minded  and  chivalrous  friendship  between  a 
man  and  woman,  no  matter  that  they  may  not  be  married,  is  as 
harmless  as  friendship  between  man  and  man.  No  one  can  be 
deceived  as  to  the  characteristics  of  such  a  sentiment.  If  a  man 
has  a  sincere  admiration  for  your  wife,  for  her  good  qualities,  how 
will  he  manifest  it  ?  Will  he  sneak  into  your  house  in  your  absence 
every  time  that  after  watching  your  footsteps  he  finds  you  are  gone  ? 
Will  he  go  there  and  get  that  wife  in  a  room  alone,  and  sit  there 
hour  after  hour,  excluding  all  other  persons  from  the  room  ?  Will 
he,  in  short,  by  the  mode  in  which  he  seeks  her  society,  by  the 
mode  in  which  he  enjoys  that  society,  manifest  the  fact  that  he 
fears  your  presence  and  mine  ?  This  was  the  kind  of  intimacy  that 
I  referred  to  when  I  spoke  of  intimacies  indicating  a  passional, 
guilty  attachment. 

This  would  have  been  Stuart's  story,  had  he  come  here  and  con- 
fessed this  crime: 

"I  came  to  Chicago,  a  stranger  destitute  of  friends  and  fortune. 
Among  my  earliest  patrons  and  benefactors  was  the  complainant  in 
this  case.  He  gave  me  employment;  he  introduced  me  to  his 
friends;  at  my  own  solicitation  he  introduced  me  to  his  wife;  he 
invited  me  to  his  house,  and  there  presented  me  to  his  children  and 
his  guests.  I  found  him  in  a  stately  mansion,  adorned  with  all  the 
embellishments  of  art,  and  furnished  with  every  appliance  of  com- 
fort and  luxury.  I  found  him  happy  in  the  society  of  his  wife, 
still  beautiful,  accomplished  and  attractive;  a  daughter  of  tender 
years,  beautiful  and  affectionate  as  the  heart  of  a  parent  could 
desire,  completed  the  circle  of  that  family,  and  left  nothing  for 
those  parents  to  wish.  I  was  received  as  an  honored  guest  with 
the  most  liberal  hospitality.  For  these  substantial  favors,  for  these 
generous  kindnesses,  what  was  my  return  ?  Availing  myself  of 
the  opportunities  afforded  by  the  hospitalities  thus  extended  to  me, 
even  under  the  roof  to  which  I  had  been  invited,  at  the  hospitable 
board  where  I  was  sharing  the  bounty  of  my  friend  in  the  presence 


548  MODERN  JURY  TRIALS. 

of  his  child,  under  his  own  eye,  while  partaking  of  his  bounty,  I 
coolly  plotted  the  ruin  of  his  wife.  Availing  myself  of  the 
opportunities  afforded  by  my  friend's  absence,  I  stole  like  a  thief 
at  night  to  his  house,  and  having  first  secured  an  intimacy  with 
that  wife  by  the  foulest  slanders,  I  instilled  a  suspicion  into  her 
mind  against  the  fidelity  of  her  husband.  Then  following  up  the 
advantage  thus  gained,  I  resorted  to  that  most  potent  weapon  of 
the  seducer,  flattery,  and  aided  and  favored  by  the  frank,  generous 
and  confiding  temper  of  my  friend,  and  the  natural  vanity  of  my 
victim,  so  rapid  was  my  progress  that  in  three  months  from  my 
entrance  into  his  house,  its  proud  mistress  had  become  the  mere 
slave  of  my  will,  and  the  victim  of  my  lusts.  For  months  after 
this  I  continued  to  receive  the  most  touching  evidences  of  kindness 
and  confidence  at  the  hands  of  the  husband,  while  I  crawled  nightly 
to  his  house  and  repeated  there  the  wrong  I  had  before  done  him. 
All  this  time  I  met  him  with  a  smile  upon  my  lips,  but  it  was  the 
smile  of  Judas  betraying  his  master.  Such  was  my  return  for  his 
kindness  and  generosity.  I  found  that  house  the  happy  and  honored 
home  of  the  holiest  affections,  and  the  tenderest  sentiments.  As 
Satan  entered  the  bowers  of  Eden,  so  I  with  the  guile  of  the  ser- 
pent and  the  malignity  of  a  fiend,  crept  within  this  earthly  paradise, 
and  converted  it  into  a  den  of  pollution  and  infamy." 

Dare  he  make  and  swear  to  that  confession? 

In  conclusion,  I  will  add  a  word  only  to  what  I  have  already 
said,  in  regard  to  your  responsibility  and  mine  in  this  case.  I  have 
now  in  my  poor  way,  and  according  to  the  best  of  my  ability  dis- 
charged mine.  The  case  now  remains  with  you.  I  know  well  I 
entertain  no  doubt  that  if  you  were  to  listen  to  the  opinions  of  the 
public,  especially  just  about  here,  where  so  many  appliances  have 
been  used,  which  you  understand  as  well  as  I  do;  if  you  are  to  be 
guided  by  them,  I  can  tell  you  what  your  verdict  will  be.  All  I 
have  to  say  is,  that  if  this  testimony  cannot  command  a  verdict 
from  a  jury;  if  the  fact  of  these  intimacies  continued  through  two 
years,  as  we  have  proved;  if  these  four  written,  and  four  oral  con- 
fessions, followed  by  four  letters  containing  confessions  equally  as 
strong,  making  twelve  confessions  in  all,  running  through  the  space 
of  ten  days,  when  every  possible  chance  of  collusion  is  excluded, 
when  every  influence  is  denied,  when  the  woman  was  as  free  as  you 
or  I,  when  the  letters  themselves  show  that  her  mind  was  as  clear 
as  it  ever  was  in  her  life,  when  she  expresses  in  those  letters  feel- 
ings that  are  perfectly  natural  to  one  in  her  situation,  and  compre* 
hends  clearly  both  the  past  and  the  future;  if  such  evidence  cannot 
prevail,  then  this  statute  between  such  parties  cannot  be  executed. 


BURCH  DIVORCE  CASE.  549 

I  have  no  doubt  it  can  be  among  the  poor  and  the  obscure.  But  if 
this  proof  does  not  compel  you  to  a  verdict  for  the  complainant, 
then  as  between  the  rich  and  the  well  born,  those  who  have  power 
and  influence,  this  statute  is  a  nullity,  and  the  public  may  as  well 
know  it. 

Mr.  Van  Arman  closed  his  argument  in  the  case  at  half  past  one  o'clock, 
and  the  court  adjourned  until  half  past  two.  Before  the  hour  of  opening,  an 
immense  crowd  gathered  in  the  court-room,  and  every  available  inch  of  space 
was  filled.  After  order  had  been  restored,  the  court  gave  its  instructions  to 
the  jury,  which  occupied  until  four  o'clock,  at  which  hour  the  jury  retired 
and  the  immense  crowd  left  the  building. 

From  that  time  until  the  jury  came  in,  the  village  was  in  an  intense  state  of 
excitement,  and  crowds  of  people  gathered  in  the  hotels  and  upon  the  streets, 
anxiously  and  excitedly  canvassing  the  result. 

When  it  was  known  that  the  jury  had  agreed,  the  square  in  front  of  the 
court-house  was  densely  packed  with  a  crowd,  not  a  hundredth  part  of  which 
could  gain  admission  into  the  building.  At  half-past  five  the  jury  had  agreed, 
and  the  doors  were  opened.  A  perfect  tide  of  humanity  flowed  up  the  stair- 
way, many  being  forced  and  irresistibly  carried  up  without  touching  the  stairs. 

The  jury  entered  the  room  amid  profound  stillness,  their  faces  eagerly 
scanned  by  the  crowd.  Every  one  seemed  to  hold  his  breath,  and  there  was  a 
silence  almost  as  of  death.  The  whole  agony,  hopes  and  fears  of  this  all- 
absorbing  case  were  concentrated  into_a  single  moment.  The  parties  to  the  suit 
were  not  present.  Messrs.  Beckwith  and  Browning  of  the  defense,  and  Mr. 
Miller  of  the  prosecution  retained  their  usual  places. 

The  roll  of  the  jury  was  called.  The  judge  asked  the  jury  if  they  had 
agreed  upon  a  verdict.  The  foreman  replied  in  the  affirmative,  and  handed 
the  verdict  to  the  clerk,  who  read  it,  announcing  a  verdict  for  the  defendant. 

The  words  were  hardly  out  of  the  mouth  of  the  clerk  before  a  thundering 
burst  of  applause  broke  forth  from  the  audience  which  shook  the  court-house 
from  roof  to  basement.  The  court  rapped  upon  the  bench  and  the  sheriff  in 
vain  endeavored  to  restore  quiet  by  shouting  at  the  top  of  his  voice.  Again 
and  again  tb<3  applause  broke  forth.  Every  one  was  crazy  with  joy.  Mr. 
Browning  burst  into  tears,  and  Mr.  Beckwith  sat  like  one  thunderstruck. 

The  judge  again  asked  the  jury,  "  Gentlemen,  you  all  find  for  the  defend- 
ant ?"  They  answered,  simultaneously,  "Yes,  sir."  Again  the  crowd  broke 
forth  in  another  wild  burst  of  applause. 

The  verdict  was  announced  to  Mrs.  Burch  by  Gilbert  C.  Davison,  Esq.,  of 
Albany.  She  was  entirely  overcome,  and  her  mother,  Mrs.  Turner,  rushed 
into  her  daughter's  arms  in  a  flood  of  tears.  A  public  meeting  soon  assembled. 

After  the  playing  of  several  airs  by  the  band,  the  door  opened  and  Mrs.  Burch 
appeared,  leaning  upon  Mr.  Beckwith's  arm.  She  was  wrapped  in  shawls  and 
received  the  crowd  one  by  one,  who  congratulated  her  again  and  again.  A 
large  number  of  ladies  visited  her,  and,  unable  to  control  their  feelings,  could 
only  clasp  her  in  their  arms.  The  congratulations  lasted  until  a  late  hour, 
and  the  crowd  then  adjourned  to  New  York  House,  where  an  impromptu 
oyster  supper  was  served,  and  all  was  joy  and  hilarity  until  a  late  hour  in  the 
night.  Before  the  close  of  the  supper,  an  honorary  committee  of  the  first 


550  MODERN  JURY  TRIALS. 

ladies  and  gentlemen  of  the  village  was  appointed  to  escort  Mrs.  Burch  to 
Wheaton.    She  was  cheered  on  her  journey  and  followed  by  twenty  teams. 

The  news  was  received  in  Chicago,  with  the  wildest  demonstrations  of  joy, 
and  spread  like  wildfire  through  the  streets.  Rockets  and  fireworks  were  set 
off  from  the  Tremont  House,  and  bonfires  were  soon  blazing  uppn  the  street 
corners.  Every  one  seemed  delirious  with  joy  at  this  sudden  but  emphatic 
indorsement  of  Mrs.  Burch  implied  in  the  verdict 


CHIEF   JUSTICE  RYAN'S   ADDRESS. 

Delivered  before  the  Law  Class  of  the  University  of  Wisconsin,  June,  1880. 


Whether  wearing  the  soft  gloves  of  peace  or  the  bloody  gauntlets  of  war. 


Men  who  combine  such  force  with  words,  shot  like  cannon  balls, 
with  the  hot  breath  of  magnetic  thoughts,  richly  deserve  a  hearing 
like  that  accorded  this  late  eminent  advocate.  The  scarcity  of  his 
speeches  render  their  value  $25  a  volume.  This  alone  should 
induce  a  careful  perusal  of  his  life  and  methods  here  presented. 
Something  of  the  man  is  seen  in  each  paragraph  reported.  To  the 
diligent,  it  is  not  enough  to  know  how  things  ought  to  be  done,  but 
how  they  are  done.  What  is  said  of  Chief  Justice  Ryan  will  add 
some  light  to  the  career  of  a  great  word  painter  and  artistic 
speaker,  who  was  as  fearless  as  he  was  grand  in  method  and  senti- 
ment. Many  of  his  passages  are  like  the  clear,  sharp  sentences  of 
Addison. 

Gentlemen  of  the  Law  School: 

I  obey  your  invitation  to  address  you,  on  the  occasion  of  your 
taking  your  degree  in  the  University,  and  assuming  your  place  in 
the  profession  to  which  society  intrusts  the  administration  of  its 
laws.  I  salute  you  members  of  our  ancient  and  honorable  body. 
I  welcome  you  to  no  tranquil  life,  no  cultured  ease.  I  welcome 
you  to  a  calling  of  incessant  labor,  high  duty  and  grave  responsi- 
bility. If  our  profession  be,  as  I  believe,  the  most  honorable,  it  is 
also  the  most  arduous,  of  all  secular  professions.  Duty  is  the  con- 
dition of  all  dignity.  *  *  * 


JUSTICE  RYAN'S  ADDRESS.  55) 

Man  gradually  acquired  the  faculty,  and  saw  the  value,  of 
organization.  In  time  nations  learned  to  distinguish  the  three 
fundamental  functions  of  government,  the  executive,  legislative  and 
judicial ;  and  knew  that  the  separation  of  these  is  essential  to  the 
freedom  of  society  and  its  order.  And  it  came  to  be  understood 
that  the  freedom  and  order  of  society  depended  hardly  less  on 
observance  of  the  law  than  on  certainty  of  the  law.  And  so,  when 
men  differed,  according  to  their  intelligence  and  their  interest,  in 
the  interpretation  and  application  of  the  law  of  God,  the  legislative 
function  set  itself  at  work  to  formulate  the  divine  law  appointed 
for  man,  in  codes  constituting,  in  each  state,  the  law  of  the  land. 
Thus  the  lex  loci  is  the  enactment,  by  each  state,  for  itself,  as 
applicable  to  the  conditions  of  its  own  society,  of  its  comprehen- 
sion of  the  law  given  by  God  to  man,  in  the  beginning.  This  is 
the  philosophy  of  legislation.  This  is  the  authority  of  municipal 
law.  It  does  not  rest  on  its  own  right,  but  on  the  right  which  it 
reflects.  It  has  the  same  relation  to  divine  law  that  moonlight  has 
to  sunlight.  In  a  philosophical  sense,  it  is  not  so  much  the  law  as 
the  interpretation  of  the  law.  Its  moral  force  rests  in  the  law  of 
God. 

And  man  is  not  only  incompetent  in  legislation;  he  is  fickle  alfBO, 
as  incompetency  is  apt  to  be.  Through  all  his  boasts  there  lurks  in 
him  a  consciousness  of  failure.  This  makes  him  restless.  Dis- 
satisfied with  the  present  order,  he  is  more  inclined  to  look  to  arbi- 
trary change  than  to  seek  the  principle  of  wrong  in  existing  law. 
He  often  confounds  change  with  progress.  He  forgets  that,  if 
antiquity  cannot  confirm  the  old,  novelty  can  lenl  no  sanction  to 
the  new.  He  does  not  perceive  that  the  old  is  neither  right  nor 
wrong,  because  it  is  old;  or  the  new,  because  it  is  new.  He  for- 
gets morality  in  expediency.  He  forgoes  principle  f ^r  appearance. 
He  loses  sight  of  the  substance  in  the  darkness  of  the  shadow.  He 
overlooks  the  law  of  God,  or  sees  it  dimly  through  the  mist  of 
social  error.  Like  all  blunders,  legislation  is  at  once  presumptuous 
and  unstable.  It  is  constantly  facing  problems  which  it  cannot 
solve.  It  has  constantly  to  correct  mistakes,  which  it  did  not 
foresee.  Yet  it  hesitates  little  at  innovation,  and  loves  arbitrary 
change.  It  has  been  so  far  little  better  than  a  system  of  experi- 
ments, more  or  less  successful,  as  they  have  adhered,  with  greater 
or  less  fidelity,  to  the  fundamental  authority  of  God's  law. 

The  administration  of  the  law  implies  the  judicial  function.  For 
that  only  is  a  government  of  law,  which,  to  apply  the  language  of 
Mr.  Webster,  puts  life,  liberty  and  property  under  judicial  protec- 
tion; proceeds  always  upon  inquiry;  hears  always  before  determi- 


552  MODERN  JURY  TRIALS. 

nation  ;  renders  judgment  only  after  trial.  Independent  of  tha 
judicial  function,  the  legislative  is  impotent,  and  the  executive  ii 
despotic.  The  judicial  function  implies  question  and  debate. 
And,  in  this  sense,  it  includes  a  bar,  trained  and  skilled  in  the 
principles  and  processes  of  the  law.  This  is  the  business  of  a  life- 
time, for  which  society  at  large  has  no  leisure.  And  so  society  has 
instituted  and  set  apart  a  body  of  men,  trained  to  the  knowledge 
and  practice  of  the  law,  learned  in  its  principles  and  processes,  to 
interpret  the  law  to  society,  to  guide  the  business  of  society  under 
the  law,  to  protect  the  legal  rights  of  society  and  its  members,  to 
look  to  the  intelligent  and  faithful  course  of  judicial  proceedings, 
and  to  stand  charged  with  the  holy  office  of  the  administration  of 
God's  justice  among  men. 

The  law  is  a  science.  It  is  no  mere  trade.  It  is  not  the  road  to 
wealth.  There  is,  in  our  society,  no  branch  of  business,  no 
mechanic  art,  which  is  not  a  better  avenue  to  riches.  Lawyers., 
indeed,  sometimes  grow  rich  in  the  speculations  of  the  world. 
Such  run  the  risk  of  sacrificing  their  profession  to  their  interest. 
For  law  is  a  jealous  mistress,  and  exacts  devotion  of  heart  and  life. 
She  often  honors  her  disciple  ;  but,  in  this  country,  she  rarely 
enriches  him.  Great  lawyers,  not  otherwise  enriched,  always  or 
almost  always,  die  poor.  Wealth,  too,  is  a  jealous  god,  and  those 
who  worship  at  its  shrine  must  surrender  heart  and  life  to  their 
idol.  What  we  call  the  learned  professions  are,  therefore,  not 
among  the  thoroughfares  of  fortune.  It  is  generally  the  success- 
ful lawyer's  lot  to  spend  life  in  the  luxury  of  refined  and  elegant 
poverty.  The  lawyer,  indeed,  must  live  and  receive  his  quiddam 
honorarium.  But  this  is  the  incident,  not  the  aim,  of  professional 
life.  The  pursuit  of  the  legal  profession,  for  the  mere  wages  of 
life,  is  a  mistake  alike  of  the  means  and  of  the  end.  It  is  a  total 
failure  of  appreciation  of  the  character  of  the  profession. 

There  go  to  this  ambition,  high  integrity  of  character  and  life; 
inherent  love  of  truth  and  right;  intense  sense  of  obedience,  of  sub- 
ordination to  law,  because  it  is  law;  deep  reverence  for  all  author- 
ity, human  and  divine;  generous  sympathy  with  man,  and  profound 
dependence  on  God.  These  we  can  all  command.  There  should 
go  high  intelligence.  That  we  cannot  command.  But  every 
reasonable  degree  of  intelligence  can  conquer  adequate  knowledge, 
for  meritorious  service  in  the  profession.  The  character  of  a 
lawyer  cannot  always  gain  distinction.  That  may  belong  to  intel- 
lect. But  character  can  always  command  usefulness.  It  is  best 
that  they  go  together.  But  in  our  profession,  character  without 
high  intellect,  is  a  greater  power  for  good  than  intellect  without 


JUSTICE  RYAN'S  ADDRESS  553 

high  character.  It  is  a  grievous  mistake  that  it  is  a  profession  of 
craft.  Craft  is  the  vice,  not  the  spirit  of  the  profession.  Trick  is 
professional  prostitution.  Falsehood  is  professional  apostacy. 
The  strength  of  a  lawyer  is  in  thorough  knowledge  of  legal  truth, 
in  thorough  devotion  to  legal  right.  Truth  and  integrity  can  do 
more  in  the  profession  than  the  subtlest  and  wiliest  devices.  The 
power  of  integrity  is  the  rule;  the  power  of  fraud  is  the  exception. 
Emulation  and  zeal  lead  lawyers  astray;  but  the  general  law  of  the 
profession  is  duty;  not  success.  In  it,  as  elsewhere  in  human  life, 
the  judgment  of  success  is  but  the  verdict  of  little  minds.  Pro- 
fessional duty,  faithfully  and  well  performed,  is  the  lawyer's  glory. 
This  is  equally  true  of  the  bench  and  of  the  bar. 

On  the  bench,  lawyers  are  charged  with  a  higher  grade  of  func- 
tion, little  more  important  than  their  duty  at  the  bar.  The  bench 
necessarily  depends  much  upon  the  bar.  A  good  bar  is  an  essential 
of  a  good  court.  The  problems  of  justice  can  rarely  be  safely 
solved  in  solitary  study.  Forensic  conflicts  give  security  to  the 
judgment  of  the  law.  The  world  sometimes  scolds  at  the  delay 
and  uncertainty  of  the  administration  of  justice.  These  are  evils 
essential  to  our  civilization,  perhaps  to  any  attainable  civilization. 
But  summary  judgment  is  judicial  despotism.  Impulsive  judg- 
ment is  judicial  injustice.  The  bench  symbolizes  on  earth  the 
throne  of  divine  justice.  The  judge  sitting  in  judgment  on  it,  as 
the  representative  of  divine  justice,  has  the  most  direct  subrogation 
on  earth  of  an  attribute  of  God.  In  other  places  in  life,  the  light 
of  intelligence,  purity  of  truth,  love  of  right,  firmness  of  integrity, 
singleness  of  purpose,  candor  of  judgment,  are  relatively  essential 
to  high  beauty  of  character.  On  the  bench  they  are  the  absolute 
condition  of  duty;  the  condition  which  only  can  redeem  judges 
from  moral  leprosy.  When  I  was  younger,  I  could  declaim  against 
the  enormity  of  judicial  corruption.  I  could  not  now.  I  have  no 
heart  for  it.  The  mere  words  seem  to  have  a  deeper  ignominy 
than  the  wisest  brain  and  the  most  fluent  tongue  could  put  into 
other  language.  The  judge  who  palters  with  justice,  who  is 
swayed  by  fear,  favor,  affection  or  the  hope  of  reward,  by  personal 
influence  or  public  opinion,  prostitutes  the  attribute  of  God,  and 
sells  the  favor  of  his  Maker  as  atrociously  and  blasphemously  as 
Judas  did.  But  the  light  of  God's  eternal  truth  and  justice  shines 
on  the  head  of  the  just  judge,  and  makes  it  visibly  glorious. 

Hardly  less  grave  are  the  duties  of  the  bar.  The  courts  do  not 
see  half  the  service  which  a  practicing  lawyer  renders  to  society. 
In  his  office,  every  lawyer  is  a  judge.  In  matters  not  litigated, 
vastly  exceeding  litigated  matters,  he  decides  all  questions;  and, 


554  MODERN  JURY  TRIALS. 

failing  litigation,  his  opinions  are  the  actual  judgment  of  the  law. 
He  counsels  those  who  resort  to  him  so  as  to  avoid  difficulty,  solvei 
doubts,  removes  obstacles,  guides  affairs  according  to  law,  and  set- 
tles controversies  before  they  grow  into  lawsuits.  It  is  the  office 
of  a  lawyer  at  the  bar  to  discourage,  not  encourage,  litigation. 
His  calm  and  skilled  judgment  soothes,  if  it  cannot  convince,  con- 
tentious selfishness  and  passion.  Every  good  lawyer's  office  is  a 
court  of  conciliation. 

It  is  the  business  of  a  lawyer  to  consider  well  the  merits  of  a 
controversy,  before  he  takes  retainer  to  litigate  it.  But  once  he  is 
retained,  hesitation  should  give  place  to  zeal.  In  forensic  contro- 
versies, one  of  the  parties  is  generally  wrong;  both  may  be.  But 
that  does  not  imply  that  the  lawyer's  retainer  does  wrong  to  the 
administration  of  justice.  In  doubtful  cases,  it  is  within  neither 
the  duty  nor  the  power  of  a  practicing  lawyer  to  decide.  That  is 
for  the  court.  It  is  only  judgment,  after  litigation,  which  can  set- 
tle right.  In  the  selfish  controversies  of  life,  a  practicing  lawyer 
should  generally  accept  all  knowledge  as  uncertain,  all  aspects  of 
truth  as  hypothetical,  all  opinion  as  doubtful,  until  tested  by  the 
ordeal  of  litigation.  Even  proximate  justice  is  only  to  be  secured, 
in  the  forensic  contests  of  interest  and  feeling,  by  thorough  pre- 
sentation of  both  sides;  by  zealous  advocacy  of  each,  as  if  it  were 
the  sure  right.  The  counsel  on  both  sides,  within  due  professional 
limits,  alike  serve  the  cause  of  truth,  alike  contribute  to  the  justice 
of  the  case.  To  this  end,  it  is  the  duty  of  every  retained  lawyer  to 
put  his  faith  in  his  client  and  his  client's  cause.  The  lawyer  should 
believe  in  his  retainer  when  he  takes  it;  once  taken,  he  should  never 
mistrust  nor  betray  it.  The  fidelity  of  our  profession  is  a  great 
moral  lesson.  Kings  may  envy  and  prelates  imitate  it.  It  is  a 
shining  glory  of  the  bar.  The  world  may  frown,  friends  fall  off, 
children  rebel,  wife  desert  or  betray;  but  the  client  has  an  adherent 
whose  faith  never  fails,  whose  loyalty  never  wavers,  true  through 
good  report  and  through  evil  report,  true  to  death  and  to  the  mem- 
ory which  survives  death.  It  is  the  wise  policy  of  the  law  that  the 
lawyer  should  be  the  alter  ego  of  his  client.  And  legal  annals  bear 
a  noble  monument  of  justice  well  administered,  to  the  controversial 
fidelity  of  lawyers  to  their  clients,  in  proceedings  everywhere 
according  to  the  course  of  the  common  law. 

The  bar  does  not  claim  to  be  the  Communion  of  Saints.  It  only 
claims  to  be  a  noble  organization  of  fallible  men,  in  a  fallible 
society.  It  concedes  that  .ill  lawyers  sometimes  blunder  in  profes 
sional  service;  that  many  sometimes  sin  against  professional  duty; 
that  some  are  incompetent  and  some  are  vicious.  But  it  asserts  it* 


JUSTICE  RYAN'S  ADDRESS,  555 

own  dignity  and  integrity,  by  a  greater  contempt  than  the  world 
has  for  its  dunces,  by  a  severer  reprobation  of  its  knaves. 

Let  the  dunces  pass.  As  Dogberry  says,  their  talent  is  the  gift 
of  fortune.  Society  is  too  full  of  dunces  to  spare  a  contribution  to 
all  the  learned  professions.  And  the  dunces  of  the  world  are  alto- 
gether too  respectable  and  influential  a  class  to  be  criticised  with 
safety.  Indeed,  the  professional  dunce  is  too  mere  a  negative  to  be 
worth  separate  consideration.  It  is  not  so  with  the  knaves.  They 
point  professional  vices,  and  a  glimpse  at  them,  they  are  not  worth 
more  than  a  glimpse,  will  serve  for  shade  in  the  likeness  of  the  true 
lawyer. 

They  are  only  seen  on  close  inspection.  A  broad,  generous, 
philosophic  view  of  the  profession  from  without  does  not  notice 
them.  The  noble  aim  of  the  profession,  its  character  and  plane 
in  society,  its  high  and  holy  office,  are  unaffected  by  such  acci- 
dental and  incongruous  blemishes.  See  it  sweep  through  the  gen- 
erations, the  glorious  bar;  administering  justice;  preserving  order- 
not  only  defending  and  consolidating  the  institutions  of  civiliza 
tion,  but  pointing  the  way  and  leading  the  van,  in  the  course  of  al1 
safe  and  solid  progress;  the  constituted  and  faithful  guardian,  under 
the  law,  of  all  true  human  liberties.  In  all  free  countries  the  love 
of  right,  the  broad  views,  the  disciplined  mind,  the  educated  skill 
of  the  bar,  have  made  it  a  potent  political  agent.  In  this  country 
they  made  it,  in  a  great  degree,  the  teacher  and  leader  of  parties. 
In  the  absence  of  all  privileged  orders,  they  made  it  a  virtual  power 
in  politics,  a  quasi  aristocracy  of  cultured  talent.  Think  of  the 
great  parties  and  their  leaders.  Think  of  the  congresses  and  their 
great  men.  Take  the  lawyers  from  the  leaders  and  statesmen,  and 
see  how  sorely  thinned  the  ranks  would  be.  We  may  boast  of  our 
democracy  as  we  will.  Organized  leadership,  an  intellectual  aris- 
tocracy, is  essential  to  a  free  country.  And  though  others  have 
filled  and  are  filling  many  great  places  in  the  ranks,  the  American 
aristocracy  of  brain  is  substantially  the  American  bar.  So  it  has 
been  and  so  it  will  be.  We  deprecate  party,  but  party  is  necessary 
to  free  government.  For  good  and  for  evil,  party  has  done  great 
work  in  this  land.  And  it  will.  Old  parties  seem  to  be  passing 
away.  The  grand  old  party,  which  I  have  long  loved  and  served, 
which  I  hope  I  may  not  survive,  seems  to  have  forgotten  its  prin- 
ciples. The  other  great  party,  greater  now  in  power  and  place,  yet 
with  fewer  and  lesser  historical  claims  to  reverence,  seems  to  have 
out-lived  its  principles.  There  is  an  odor  of  political  decomposition 
in  the  air.  The  spirit  seems  moving  on  the  face  of  the  waters.  New 
parties  are  likely  to  arise.  Those  of  us  who  have  grown  old  in  old 


556  MODERN  JURY  TRIALS. 

parties,  are  generally  too  little  pliant  to  new  policies,  too  true  to 
the  past  to  take  new  party  service.  For  one,  I  never  will.  But 
you,  gentlemen,  are  young  and  free.  The  generation  of  lawyers  to 
whom  I  belong,  has  nearly  passed  away,  and  will  have  no  leader- 
ship in  new  parties.  That  will  soon  fall  to  your  professional  gen- 
eration. It  will  soon  claim  the  succession  of  the  aristocracy  of 
intellect.  Imitate  your  forefathers  of  the  bar,  the  great  generation 
of  lawyers  which  preceded  mine,  and  gave  Webster  to  the  bar  and 
Taney  to  the  bench.  Play  your  allotted  part,  with  their  courage 
and  ability,  and  with  fidelity  to  the  spirit  of  our  noble  profession. 
It  is  said  that  he  that  girdeth  on  his  harness  should  not  boast 
himself,  as  he  that  putteth  it  off.  That  depends,  perhaps,  on  the 
conditions  under  which  it  is  put  on  and  taken  off.  In  the  battle  of 
life,  we  all  stumble,  we  are  all  maimed.  Few,  if  any,  lay  down 
their  arms  in  that  battle  without  sense  of  failure  or  defeat.  It  is 
fit  to  lay  off  that  armor,  at  the  call  of  the  trumpet,  cheerfully  but 
humbly.  It  is  better  for  society  that  the  young  should  put  it  on 
joyfully  and  hopefully  at  least,  if  not  boastfully,  as  a  bridegroom 
puts  on  his  wedding  garment.  I  trust  that  you  are  so  putting  on 
your  professional  armor;  resolute,  and  full  of  confidence,  that  in 
your  day  at  the  bar  order  shall  be  preserved,  law  ameliorated,  civ- 
ilization raised,  justice  truly  administered.  I  hope  that  you  and 
your  generation  of  lawyers  may  play  well  your  part  towards  these 
results.  I  pray  that  when  all  of  our  great  profession,  you  of  your 
generation  and  we  of  ours,  shall  stand  in  turn  before  the  bar  of  the 
great  and  final  Judge,  the  alpha  and  omega  of  all  law  and  all  judg- 
ment, we  may  be  each  found  to  have  so  contributed  to  the  admin- 
istration of  justice  here,  that  we  may  find  mercy  there.  Once 
more,  I  welcome  you  to  the  Wisconsin  Bar.  And  for  a  farewell,  I 
wish  unto  you,  in  the  words  of  grand  old  Coke,  the  gladsome  light 
of  jurisprudence,  the  loveliness  of  temperance,  the  stability  of  forti- 
tude, and  the  solidity  of  justice. 

AN  IDEAL  PICTUBE  OF  AN  IDEAL  JUDGB. 

The  late  Chief  Justice  E.  G.  RYAN,  whose  excellent  address  is 
given  at  length,  was  one  of  the  most  distinguished  lawyers  of  the 
great  Northwest.  To  use  the  apt  words  of  Col.  W.  F.  VILUS,  of 
Madison,  delivered  at  a  bar  meeting,  November,  1880,  in  honor  of 
the  great  jurist: 

That  profound  and  abundant  wealth  of  learning,  that  eloquent 
tongue,  that  massive  brain,  which,  like  an  exhaustless  mine,  yielded 
richer  stores  the  deeper  it  was  tried,  while  its  every  product  spark- 


JUSTICE  RYAN'S  ADDRESS.  557 

led  with  the  gleam  of  priceless  value,  are  gone  from  men,  lost  to  us 
and  to  the  state,  forever  ! 

A  pioneer  of  civilization  to  the  bar  of  the  West;  an  advocate 
fit  to  cope  with  any  of  historic  renown;  a  lawyer  and  judge  of  com- 
prehensive and  accurate  learning,  penetrating  acumen  and  wise 
judgment,  the  head  of  the  bar  and  the  chief  justice  of  the  state; 
profession  and  people  may  well  sit  down  in  sackcloth  and  ashes, 
lamenting  our  irreparable  loss.  "He  was  a  man,  take  him  for  all 
in  all,  we  shall  not  look  upon  his  like  again." 

*  He  was,  in  every  respect  in  which  his  character 
and  abilities  are  regarded,  an  extraordinary  man.  Every  faculty 
he  exerted,  every  accomplishment  he  assumed  to  possess,  every  pas- 
sion which  moved  him,  was  great,  intensely  great.  He  was  a  giant 
among  men,  in  soul,  intellect  and  attributes. 

It  would  require  his  own  power  and  discrimination,  his  own  per- 
fection of  speech,  truly  to  represent  him.  In  the  hands  of  such  an 
artist  in  language,  the  portrait  of  his  mind  and  character  would  be 
as  striking  and  absorbing  in  interest  as  any  ever  drawn  for  the  gaze 
and  wonder  of  mankind.  But  who  now  shall  paint  it  ?  I  know 
none  who  could  but  him,  and,  in  his  death,  the  subject,  the  artist 
and  the  portrait,  are  lost  together ! 

It  is  a  fair  question  whether  his  wondrous  powers  as  a  writer,  a 
speaker  and  a  lawyer,  were  due  in  greater  degree  to  the  strength  of 
his  natural  parts  or  the  perfection  of  his  education.  Perhaps  gener- 
ally it  would  be  answered,  to  the  former.  But  certain  it  is  no  one 
was  ever  more  finished  by  education.  Every  spoken  and  every  writ- 
ten performance  of  his  life  bears  the  impress  of  his  learning,  shines 
conspicuously  with  the  lustre  of  his  scholarship.  His  training  was 
chiefly  in  law  and  language;  in  both  remarkable  for  accuracy  and 
finish.  And  it  is  especially  noteworthy,  that  he  was,  in  his  emi- 
nence in  both,  self-trained.  He  finished  his  course  in  school  at 
seventeen;  he  was  but  twenty  when  he  quit  his  pupilage  in  law  in 
his  native  country  for  the  new  world.  From  that  time  forward 
his  instruction  was  administered  to  him  by  himself,  from  books 
and  observation  of  men.  His  history  as  we  see  it,  discloses  no 
marked  precocity.  For  six  years  after  his  coming  to  this  country, 
he  supported  himself  by  teaching  and  clerical  labor,  while  he  pros- 
ecuted his  preparations  for  the  profession.  He  was  admitted  to 
the  bar  at  twenty-six,  but  does  not  appear  to  have  attracted  espe- 
cial attention  to  his  superior  powers  until  past  thirty.  He  was  in 
his  thirty-sixth  year  when,  in  the  first  constitutional  convention  of 
the  territory,  he  acquired  that  acknowledged  pre-eminence  which 
he  ever  after  maintained. 


558  MODERN  JURY  TRIAL8. 

To  me,  his  natural  parts  appear  most  splendid  and  valuable  for 
the  manner  in  which  they  assimilated  and  profited  by  knowledge 
and  observation.  Every  book  he  read  and  every  hour  he  passed  of 
life  made  addition  to  his  powers.  He  did  not  merely  read  and  see 
to  add  to  his  store  of  learning;  what  he  gained  was  not'  so  much 
increase  of  possessions,  as  increase  of  power,  of  the  mind.  He  read 
much,  but  never  inactively.  No  book  held  him  in  passive  submis- 
sion; he  mastered  it  easily  wi*h  an  acute  and  analytical  grasp. 
His  memory  was  retentive  and  exact. 

But  he  was  not  only  rich  in  the  lore  of  books,  he  was  an  accurate 
observer  of  men.  It  has  never  been  my  fortune  to  meet  with  any 
who  was  his  equal  in  ability  to  analyze  character.  He  read  the 
motives  of  action,  the  various  faculties  and  changing  characteris- 
tics of  men,  with  intuitive  ease,  and  nice  justice.  This  gave  pecu- 
liar force  to  his  speech  when  inveigling  against  the  conduct  and 
motives  of  those  he  attacked;  a  feature  of  his  powers  which  made 
him  not  less  terrible  to  his  enemies,  than  the  wonder  of  his  hearers, 
when  the  occasion  demanded  or  allowed  the  exhibition. 

His  course  of  self-education  was  not  limited,  as  so  commonly  the 
error  is  made,  to  mere  processes  of  study.  He  refined  and  cor- 
rected his  ideas  by  diligent  writing,  and  enlarged  their  abundance 
by  frequent  conversation.  They  who  read  with  delight  the  smooth 
and  delicious  flow  of  his  composition,  who  ride  at  ease  of  under- 
standing upon  the  perspicuous  current  of  his  expressed  thought, 
clearly  informed,  without  effort  of  their  own  save  attention,  upon 
abstruse  and  difficult  subjects  of  distressful  doubt,  are  little  fitted 
to  realize  the  freight  of  labor  which  every  word  carried  from  his 
brain.  Yet  they  who  know  his  habit  of  writing  can  testify  to  the 
painstaking  toil  with  which  he  criticized  and  purified  every  pro- 
duct of  his  pen.  He  could,  if  he  would,  compose  with  a  rapidity 
unsurpassed  by  any;  and  the  hasty  labor  of  his  desk  he  could  well 
trust  in  competition  with  the  fruit  of  pains  in  others.  But  he  was 
too  sincere  and  ardent  a  servant  and  lover  of  the  English  language, 
to  imprint  her  words  with  haste,  or  indolent  inattention,  on  a  page 
where  they  might  stand  to  her  and  his  reproach.  To  him  the  legal 
rule  of  interpretation  was  a  fact;  "Every  word  has  his  meaning." 
He  vigorously  condemned  the  debauchery  of  language  which  the 
rapid  penny-a-liners  of  the  newspapers  have  inflicted  on  our  native 
tongue,  and  the  speech  of  some,  even  of  our  scholars. 

So  in  all  his  labor  of  writing,  dictionaries  were  his  companions 
and  his  friends.  He  trusted  to  no  one  of  them,  but,  surrounded  by 
many,  he  gathered  from  the  best  linguists  the  perfect  hue  of  intel- 
ligence and  beauty  that  belonged  to  every  word  he  used,  and  set 


JUSTICE  RYAN'S  ADDRESS.  559 

it  then  in  happy  harmony  with  its  fellows  in  the  finished  picture  of 
thought,  which  his  every  period  became.  Such  discipline  had  its 
reward.  His  style  is  his  own,  strong,  clear  and  beautiful ;  not 
wholly  without  fault,  but  as  worthy  of  study  as  Addison's;  not 
always,  in  his  opinions,  perfectly  judicial,  but  turning  from  that 
path  only  to  bring  in  gems  of  beauty  by  the  way.  To  be  able  to 
write  as  Edward  G.  Ryan  has  written,  is  a  crown  of  glory  in  let- 
ters, a  sufficient  title  to  literary  renown. 

He  cultivated  conversation,  and,  as  I  have  thought,  not  only  for 
its  pleasures,  but  for  its  benefits  to  him.  Certain  it  is,  he  shone  in 
social  discourse  with  a  brilliancy  not  often  equalled.  In  happy 
hours,  when  in  health  and  spirits,  who  more  delighted  than  he  ? 
His  rapid  and  easy  speech  was  wise  or  witty  as  the  time  and  sub- 
ject suited,  but  always  sweet  in  the  simplicity  and  purity  of  the 
language  he  employed.  He  was  ever  conspicuous  for  elegant  dic- 
tion in  ordinary  speech;  nor  did  the  tumult  of  emotion  or  passion 
which  sometimes  possessed  him  mar  this  accomplishment,  or  lead 
him  to  vulgarity.  It  rather  seemed  to  heighten  and  intensify  his 
powers,  and  clothe  his  expressions  with  a  richer  color. 

Thus  the  self-imposed  habits  and  discipline  of  his  entire  life  fin- 
ished and  perfected  all  the  powers  of  the  man.  He  met  all  the 
points  of  Bacon's  aphorism;  reading  made  him  a  full  man;  confer- 
ence a  ready  man ;  and  writing  an  exact  man. 

Viewing  his  finished  character  and  faculties,  as  trained  and 
accomplished  by  his  course  of  education,  and  discarding  the  faults 
of  temperament  and  want  of  self-control,  which  blighted  his  life, 
casting  up  the  account  on  his  credit  side  only,  how  splendid  and 
magnificent  does  he  appear,  the  ideal  and  mirror  of  professional 
power  and  glory  ! 

Founded  on  such  learning,  our  departed  leader  could  not  but  be 
a  great  lawyer.  But  his  professional  powers  were  not  only  strong; 
they  shone  with  splendor.  He  was  a  great  advocate  and  a  great 
orator.  In  many  a  cause  in  the  forum,  upon  many  a  platform 
before  the  people,  he  has  exhibited  the  eloquence  and  action,  which, 
with  their  opportunities,  would  have  ranked  him  among  the  great 
names  of  the  world.  And  though  the  memory  of  the  advocate  be 
local  and  generally  fades  with  his  generation,  he  has  left  in  bequest 
to  his  professional  brethren  some  such  examples  of  forensic  elo- 
quence as  they  will  not  "  willingly  let  die." 

He  came  to  this  great  place,  as  every  one  should  come  who  is 
worthy  to  occupy  it.  He  came  in  the  ripeness  of  years  and  expe. 
rience,  after  a  long  life  of  labor  at  the  bar.  He  came  laden  with 
profound  knowledge  of  the  science  he  was  to  administer.  He  came 


,)00  MODERN  JURY  TRIALS. 

not  from  some  obscure  corner,  to  sit  in  judgment  on  arguments 
greater  than  his  understanding;  he  was  pushed  by  no  skillful 
intrigue  into  a  shameful  reward  for  mere  party  service;  but  sought 
and  taken  from  the  topmost  place  of  professional  leadership,  which, 
by  merit,  he  had  worthily  won,  he  came  fit  to  govern  and  control 
where  for  so  long  he  had  confessedly  led. 

He  came  to  the  judgment  seat  with  an  honorable  ambition,  as  to 
the  crowning  glory  of  a  devoted  professional  life;  but  he  came 
reverently,  with  an  exalted  sense  of  the  responsibilities  he  assumed, 
and  a  noble  devotion  of  all  his  faculties  and  strength  to  the  per- 
formance of  its  duties.  He  came  to  rest  on  no  pillow  of  repose, 
but  to  toil  and  build,  that  he  might  still  higher  elevate  the  court 
and  the  law,  and  exalt  justice  on  earth. 

HON.  T.  R.  HITDD,  an  eloquent  advocate  of  Green  Bay,  said  of 
him  in  his  own  language  from  a  former  lectnre  in  1862  : 

"The  defeat  of  the  Democratic  party  in  1860  has  been  followed 
by  the  revolt  of  several  of  the  states  from  the  Union,  and  by  the 
present  terrible  civil  war  because  it  was  defeated  by  a  sectional 
party.  We  reprobate  that  revolt  as  unnecessary,  unjustifiable, 
unholy!  Devoted  to  the  constitution,  we  invoke  the  vengeance  of 
God  upon  all  who  raise  their  sacrilegious  hands  against  It;  whether 
wearing  the  soft  gloves  of  peace,  or  the  bloody  gauntlets  of  war." 

It  is  not  given  to  all  men  alike  to  win  the  Chevalier  Bayard's 
epitaph  the  "  Knight  without  fear  and  without  reproach " — our 
judicial  knight  could  have  no  fear  in  the  arena  of  the  common 
law,  his  armor  invulnerable,  his  lance  the  most  potent  in  the  legal 
tournay;  on  this  bench,  these  tributes  just  delivered,  and  that  shall 
go  into  the  history  of  his  times,  attest  with  the  fidelity  of  exact 
truth,  from  those  who  were  his  co-laborers  if  not  peers  in  the 
science  of  the  law,  the  wisdom  and  foresight,  the  critical  analysis 
and  direct  solution  of  most,  apparently  to  common  minds,  difficult 
problems  as  they  came  to  him  affecting  the  rights  of  persons  and 
property;  the  two  grand  divisions  of  the  faithful  lawyer's  thought 
and  the  upright  judge's  solicitude  to  defend  the  one  and  preserve 
intact  the  other.  In  all  those  attributes  that  went  to  make  the 
finished  umpire,  Judge  Ryan  was  "  without  fear."  If  the  back- 
ground must  show  the  frailties  of  his  humanity  and  some  reproach 
mingle  with  the  otherwise  masterful  career,  it  shall  be  remembered 
of  him  "more  in  sorrow  than  in  anger." 

'•  After  life's  fitful  fever 
He  sleeps  well," 


JUSTICE  RYAN'S  ADDRESS.  561 

How  could  he  be  less  than  a  believer  in  the  soul's  immortality  as 
he  grew  from  day  to  day  stronger  and  broader  in  mind  and  power 
to  illustrate  the  soul  that  so  often  seemed  to  speak  from  those  very 
eyes  that  read  men's  faces,  as  their  brilliancy  led  the  aroused 
senses  to  straight  paths  around  devious  ways  ?  He  must  have  felt 
the  same  truth  that  the  teeming  womb  of  earth  is  hourly  proclaim- 
ing from  expanding  seed  to  luscious  fruit  of  glorious  flower — the 
child  but  cradled  to-day  with  brain  enough  to  instinctively  cling  to 
life's  first  sweet  vantage  ground — the  mother's  breast;  like  that 
earth  hid  for  a  season  seed  only  to  blossom  and  spring  into  the 
world  with  a  brain  that  can  compass  all  those  mighty  revelations 
in  art,  science,  law;  that  stamp  each  recurring  era  of  the  world's 
wonderful  development  as  but  the  working  of  that  spirit  of  immor- 
tality that  compels  the  soul  to  look  at  once  and  in  firm  belief 
"  from  Nature  straight  up  to  Nature's  God."  Could  our  illustrious 
jurist  do  less  than  believe  that  the  mighty  power  that  shook  and 
rocked  his  very  frame  with  the  earnest  emotions  of  conviction  and 
power  to  perceive,  analyze  and  formulate,  was  all  the  while  teach- 
ing that 

"Life  is  but  an  errand  to  that  magic  mom. 
Forever,  on  the  brink  of  being  born; 
The  bright  to-morrow,  cradled  in  no  cloud, 
Beyond  the  latter  pain,  beyond  the  shroud." 

Associate  Judge  COLE  said: 

Chief  Justice  Ryan  possessed  extraordinary  intellectual  powers 
as  a  lawyer  and  advocate  ;  we  presume  no  one  who  ever  heard  him 
could  for  a  moment  doubt.  It  is  no  exaggeration  to  say  that  he 
stood,  by  common  consent,  for  twenty-five  years,  at  the  head  of 
the  Wisconsin  bar,  as  its  brightest  ornament  and  most  distin- 
guished advocate.  His  knowledge  of  the  principles  of  law  in  all 
its  branches  was  at  once  varied  and  profound.  And  he  made  such 
a  brilliant  use  of  that  knowledge  in  all  his  great  efforts  as  to  secure 
the  high  distinction  which  he  attained  in  his  profession. 

While  I  have  many  times  listened  with  admiration  to  his  argu- 
ments in  this  court,  I  never  had  the  satisfaction  of  hearing  him 
address  a  jury.  But  I  can  well  understand  how  the  force  and 
fervor  of  his  eloquence  would  so  captivate  the  judgment,  so  arouse 
human  sympathy  and  emotion  as  to  render  his  influence  over  a  jury 
well  nigh  irresistible.  His  language  was  always  fine,  forcible,  and 
often  elegant  and  beautiful.  His  feelings  were  strong  and  suscep- 
tible; his  temperament  ardent;  his  manner  of  speaking  was  always 
earnest,  and  sometimes  vehement,  passionate  and  highly  denuncia- 
tory. His  power  of  sarcasm  and  invective  was  almost  unequalled. 
86 


562  MODERN  JURY  TRIALS. 

In  his  practice  at  the  bar  he  was  engaged  in  the  trial  of  many 
important  civil  and  criminal  causes,  and  in  his  management  of  them 
he  easily  established  his  right  to  stand  in  the  first  rank  of  his  pro- 
fession. I  could  readily  mention  many  an  argument  made  by  him 
at  the  bar  of  this  court  since  I  have  occupied  a  seat  upon  the 
bench  which  seemed  to  me  to  be  marked  with  the  highest  literary 
ability  and  excellence,  great  felicity  and  elegance  of  language, 
wonderful  vigor  and  clearness  of  logic,  all  illustrated  by  a  wealth 
of  learning  and  the  most  comprehensive  discussion  and  grasp  of 

legal  principles. 

• 

Hon.  JAMES  G.  JENKINS,  of  Milwaukee,  said  : 

Hi«  mind,  aiding  to  determine  great  rules  of  action,  has  thus 
been  woven  into  the  warp  and  woof  of  human  society,  largely 
influencing  men's  business  and  men's  lives.  Who  may  place 
bounds  to  his  sway  ?  Who  may  measure  the  effectiveness  of  his 
life  ?  Enough  to  say  that  the  immortality  of  his  influence  is  in 
the  line  of  the  immortality  of  justice. 

The  life  of  Judge  Ryan  was  one  long  struggle — a  struggle 
against  himself — a  struggle  against  untoward  fortune — a  struggle 
against  infirmity  which  the  world  knew  little  of  and  allowed  not 
for.  And  so  to  most  men  he  seemed  arrogant  and  proud,  whereas, 
to  those  who  knew  him  best,  he  was,  when  acquit  of  infirmity, 
companionable  and  considerate. 

He  possessed  none  of  the  arts  of  the  courtier.  He  would  neither 
bow  subservient  to  power,  nor  be  patient  in  the  presence  of  wrong 
and  oppression.  Like  the  oak  of  the  forest  he  could  break,  but 
could  not  bend.  Power  might  crush  him — it  could  not  silence  him. 
So  he  was  often  the  champion  of  the  lowly  against  the  powerful — 
I  think  out  of  abhorrence  of  the  oppressor,  rather  than  from  sym- 
pathy to  the  oppressed.  He  hated  the  wrong  more  than  he  loved 
the  victim  of  the  wrong. 

Such  a  man  could  never  be  popular  ;  he  never  sought  to  be.  He 
despised  the  popularity  that  is  run  after.  He  challenged  the  fame 
that  waits  upon  grand  deeds,  upon  great  intellectual  and  moral 
power ;  in  the  beautiful  language  employed  by  him  on  a  like  occa- 
sion : 

"  As  a  memorial  of  a  life  sealed  in  honor  and  usefulness  by 
death — and  as  an  instruction  to  us  that  we  are  compassed  about 
with  so  great  a  cloud  of  witnesses  to  see  how  we  play  our 
parts  in  the  noble  profession  which  is  charged  with  the  earthly 
administration  of  the  justice  of  God." 


JUSTICE  RYAN'S  ADDRESS,  563 

If  the  spirits  of  the  dead,  indeed,  revisit  the  scenes  of  earth ; 
if  the  departed,  indeed,  take  cognizance  of  the  affairs  of  time,  may 
we  not  indulge  the  hope  that  the  freed  spirit  of  the  great  judge 
yet  lingers  within  this  accustomed  temple.  May  we  not  trust  to 
catch  from  him,  speaking  to  us  at  least,  in  this  counterfeit  present- 
ment of  him,  some  spark  of  inspiration  to  aid  in  the  intelligent 
discharge  of  duty;  to  prompt  to  a  better  and  a  nobler  life  ;  to 
advance  yet  higher  the  standard  of  professional  honor  and  profes- 
sional attainments. 

As  descriptive  of  a  master  advocate's  style  and  language,  the  fol- 
lowing words  of  J.  W.  HINTON,  Esq.,  of  Milwaukee,  with  brief 
quotations  from  Mr.  Ryan's  best  sentences,  are  given: 

EDWARD  G.  RYAN  was  an  intellectual  prodigy,  a  constant,  assid- 
uous, untiring  reader  and  student.  His  memory  overflowed  with  the 
choicest  selections  of  literary  gems.  It  was  not  alone  his  extensive 
reading,  which  seemed  to  have  exhausted  all  literature.  It  was  the 
singular  success  with  which  his  mind  had  digested  the  vast  amount 
of  mental  and  literary  food  with  which  it  had  been  gorged.  It  was 
often  noticed  with  what  rapidity  he  would  select  gem  after  gem  to 
form  these  tiaras  of  beautiful  thoughts,  and  the  most  elegant  dic- 
tion with  which  he  clothed  and  adorned  his  ideas. 

Of  his  great  ability  as  a  lawyer,  the  profundity  of  his  legal  learn- 
ing, his  force  as  an  advocate,  his  brethren  of  the  bench  and  of  the 
bar  will  bear  their  testimony  as  they  may  see  fit.  I  trench  not 
upon  that  ground.  His  forensic  efforts  were  often  masterpieces  of 
true,  and  genuine,  and  spontaneous  eloquence,  overwhelming  the 
juries  or  audiences  to  whom  they  were  addressed.  His  metaphors, 
his  figures  of  speech,  his  tropes,  the  terseness,  the  saliency  and  often 
extremely  sententious  character  of  his  appeals,  rendered  them  pow- 
erful for  the  moment,  if  not  so  lasting  or  permanent,  in  persuasive 
or  convincing  effects. 

While  never  careless,  he  was  never  cautious  in  his  oratory;  he  was 
void  of  cunning.  He  was  not  only  great  as  an  orator,  he  was  truly 
grand.  He  was  highly  educated,  an  accomplished,  a  finished 
scholar,  not  only  familiar  with  the  rudiments  of  learning,  but  com- 
plete, almost  perfect.  Educated,  as  I  have  been  told  he  had  been, 
to  become  a  Catholic  priest,  he  was  thorough  in  a  singular  sense, 
for  nothing  had  been  neglected. 

He  had  the  most  fiery  of  temperaments,  and  a  temper  scarcely 
governable,  impetuous,  rash,  nor  could  he  curb  it.  The  temper 
often  conquered  the  man;  at  times  he  could  not  even  soften  it. 
When  he  was  stung,  or  fancied  he  was  stung,  by  his  adversary,  the 


564  MODERN  JURY  TRIALS. 

temper  would  instantly  burst  forth,  tempestuous  in  its  tones 
flaming  with  a  fierceness  of  language,  boiling  up  like  lava  from  a 
volcano,  seething  hot,  scorching  if  not  charring,  all  that  it  touched. 

In  those  bursts  of  oratorical  anger  or  rage,  there  was  never  a 
mere  incoherent,  disconnected  raving,  nor  an  instant's  hesitation  for 
the  want  of  language  to  express  that  anger.  But  invective,  sar- 
casm, vehement  denunciation  and  withering  rebuke,  rushed  like  the 
torrent  of  a  mountain  stream,  startling  all  his  listeners.  In  many 
of  these  flights  or  floods  of  language,  reason  seemed  to  have  broken 
loose  from  her  moorings,  the  physical  became  absorbed  in  the 
intellectual. 

His  versatility  was  wonderful.  "We  may  in  perfect  truth  say, 
"Age  could  not  wither  him,  or  custom  stale  his  infinite  variety." 
He  was  a  literary  and  mental  kaleidoscope,  ever  changeful,  yet 
every  change  producing  not  only  variety,  but  increase  of  beauty  in 
thought  and  force  of  expression,  extorting  higher  degrees  oi 
admiration  and  respect  the  more  frequent  were  the  changes.  We 
often  call  to  mind  what  Ben  Jonson  remarked  of  Lord  Bacon( 
"  The  fear  of  every  man  that  heard  him  was  lest  he  should  make  an 
end." 

What  Lord  Brougham  said  of  Grattan  may  be  said  of  Mr.  Ryan: 
"In  the  constant  stream  of  a  diction  replete  with  epigram  and 
point — a  stream  on  which  floated  gracefully,  because  naturally, 
flowers  of  various  hues — was  poured  forth  the  closest  reasoning, 
the  most  luminous  statement,  the  most  persuasive  display  of  all  the 
motives  that  could  influence,  and  of  all  the  details  that  could 
enlighten,  an  audience. 

"  Ofter  a  different  strain  was  heard,  and  it  was  declamatory  and 
vehement — or  pity  was  to  be  moved,  and  its  pathos  was  touching 
as  it  wan  simple;  or,  above  all,  an  adversary  sunk  in  baseness,  or 
covered  with  crimes,  was  to  be  punished  or  to  be  destroyed,  and  a 
storm  of  the  most  terrible  invectives  raged,  with  all  the  blights  of 
sarcasm  and  the  thunders  of  abuse.  The  critic,  led  away  for  the 
moment  and  unable  to  do  more  than  feel  with  the  audience,  could 
in  these  cases,  even  when  he  came  to  reflect  and  to  judge,  find 
often  nothing  to  reprehend;  seldom  in  any  case  more  than  the 
excess  of  epigram,  which  had  yet  become  so  natural  to  the  orator, 
that  his  argument  and  his  narrative,  and  even  his  sagacious  unfold- 
ing of  principles,  seemed  spontaneously  to  clothe  themselves  in  the 
most  pointed  terseness  and  most  apt  and  felicitous  antithesis." 

Here  was  a  nature,  that  loved  the  leap  of  the  torrent,  and  shrunk 
from  the  stillness  of  the  swamp — a  nature  that  revelled  in  the  roar 
of  the  tempest,  was  confused,  if  not  confounded,  by  the  quiet  of  the 


JUSTICE  RYAN'S  ADDRESS.  565 

«alm.  lie  was  an  intellectual  warrior,  a  war-god,  most  glorious 
when  most  wounded.  Never  knowing  defeat,  always  defiant, 
bounding  from  every  fall,  and  grappling  the  more  fiercely,  as  he 
felt  the  thrust  of  his  opponent's  weapon,  the  more  deeply — death 
alone  could  bring  resignation  or  cause  him  to  yield;  burning 
beneath,  and  ready  to  burst  forth  at  any  instant — those  large  eyes 
so  full  of  meaning,  so  expressive,  protruding  at  times  as  if  they 
were  telescopic,  pushed  out  further  than  common  to  sweep  the 
horizon,  and  to  take  in  view  all  that  could  be  discerned — the  physi- 
cal frame  quivering  with  the  intensity  of  his  feeling,  and  you  may 
have  feared  that  he  was  about  to  be  stricken  with  palsy,  his  whole 
body  shaking,  the  rising  and  falling  of  the  right  hand,  lips  firmly 
compressed,  nostrils  distended  as  if  the  lungs  were  drawing  in  all 
the  air  possible  for  them  to  hold;  preparing,  as  does  the  lion  to 
spring  upon  his  prey,  for  the  attack  upon  his  adversary.  If  on 
other  occasions  you  had  watched  him  as  closely  as  I  have  so  fre- 
quently done,  and  when  you  so  watched  you  remembered  his  great 
talents,  and  forgot  his  foibles — which  were  those  of  temper  only — 
you  would  have  seen  those  protruding  eyes  suffused  with  moisture 
that  could  not  be  hidden,  and,  as  you  listened  to  the  tender  senti- 
ments, welling  up  from  the  depth  of  his  heart — for  the  man  scorned 
deception  and  hated  subterfuge — you  would  have  marvelled,  unless 
you  knew  him  well,  as  some  few,  not  very  many,  did  know  him — 
you  would  have  wondered,  and  been  surprised,  at  the  perfection  of 
kindness  in  which  he  could  speak  of  those  with  whom  he  had  been 
so  often  engaged  in  the  sharpest,  closest  legal  controversy,  in  which 
he  could  not,  and  knew  he  did  not,  gain  any  credit,  and  that  feeling 
of  respect,  excited  in  you,  would  have  been  increased  by  the  perfect 
candor  of  the  sentiments  he  uttered. 

Behind  this  brain-power  their  lay  a  will-power  which  has  rarely 
been  equalled  among  the  sons  of  men;  an  intensity  of  purpose 
which  no  obstacle  could  arrest,  no  defeat  daunt,  and  a  determina- 
tion of  character  which  brightened  with  every  encounter  and  rose 
freshened  from  every  overthrow.  Nothing  could  stand  in  the  path 
of  his  purpose.  That  grim  face  never  turned  aside  to  catch  the 
fickle  murmurs  of  popular  applause.  Public  opinion  had  no  terrors 
for  him.  It  should  be  written  over  his  tomb  that  "  he  never  played 
the  demagogue."  He  never  flattered  the  people;  he  never  attempted 
to  deceive  them;  he  never  "paltered  with  them  in  a  double  sense;" 
he  never  courted  and  encouraged  their  errors.  On  the  contrary,  on 
all  occasions  he  attacked  their  sins,  he  assailed  their  prejudices,  he 
outraged  all  their  bigotries;  and  when  they  turned  upon  him  and 
attacked  him  he  marched  straight  forward,  like  Gulliver  wading 


566  MODERN  JURY  TRIALS. 

through  the  fleets  of  the  Lilliputians,  dragging  his  enemies  after 
him. 

I  give  but  a  small  portion  here  of  his  words  in  an  impeachment 
case: 

"  Here  we  find  men,  holding  official  stations,  privy  to  a  well- 
established  frand  and  forgery,  and  we  are  told  the  attempt  o 
expose  and  right  the  wrong  is  a  dangerous  attack  upon  the  inde- 
pendence and  co-equality  of  a  sovereign  department  of  the  state 
government.  What  is  popular  government  worth  if  these  things 
are  to  be  ?  What  is  the  condition  of  public  morals  in  this  state  if 
such  things  are  tolerated?  It  is  a  grievous  reproach  upon  uhe 
whole  state,  a  bitter  and  terrible  reproach,  that  any  man  can  be 
found  to  claim  the  meanest  and  lowest  office — even  that  of  fence 
viewer  or  dog-killer  on  such  frauds  as  these.  Office  has  no  such 
charms  as  to  counterbalance  such  contamination.  I  would  rather 
be  the  tenant  of  any  cell  in  any  jail  of  this  state  than  to  hold  any 
office — the  highest  in  the  gift  of  its  people,  the  highest  in  the  gift 
of  the  world — on  such  frauds  as  these.  I  would  rather  surrender 
my  citizenship;  I  would  prefer  to  surrender  it  voluntarily.  But  I 
would  surrender  it,  if  there  were  no  other  way,  but  the  commission 
of  some  crime — not  too- bad — rather  than  hold  an  office  by  so  rot- 
ten, or  base  a  title  as  this.  When  it  comes  to  pass  that  office  is 
held  on  such  a  basis,  it  is  an  insult,  a  loud  and  crying  insult,  to  the 
public  morality  of  the  people  of  the  state.  What  should  we  say  of 
the  moral  sense  of  a  people  where  men  and  women  were  permitted 
to  walk  naked  in  the  public  streets?  It  is  an  idea  which  the  decent 
moral  sense  of  the  community  will  not  tolerate.  It  would  be  an 
insult  to  that  sense  of  decency  to  attempt  such  a  thing.  But  it  ia 
a  greater  insult  to  the  moral  sense  of  the  people  for  a  man  to  walk 
abroad,  clothed  with  the  ermine  of  office,  stinking  and  rotten,  and 
reeking  with  corruption  and  foul  with  vermin  like  this.  If  there 
be  a  man  in  the  state,  outside  of  those  engaged  in  it,  who  sympa- 
thizes, or  is  ready  to  countenance  such  corruption  and  fraud,  I  am 
ashamed  for  humanity  that  it  is  so.  I  can  conceive  to  what  lengths 
political  madness  may  carry  a  man,  but  I  cannot  conceive  how  men 
can  consent  to  roll  in  such  corruption  as  this.  I  would  rather  be  a 
dog  and  wear  an  honest  man's  collar  around  my  neck  than  do  it," 


MATT    CARPENTER.  667 


MATT    OAKPENTER. 


The  American  lawyers  in  active  practice  are  familiar  with  Mr.  Carpenter  M 
a  statesman  and  supreme  court  lawyer.  They  remember  his  thrilling  sen- 
tences in  the  Senate  and  on  the  rostrum  ;  but  his  charm  as  a  speaker  was 
before  a  jury  in  the  defense  of  some  alleged  crime;  where  his  massive  form, 
graphic  and  powerful  appeals,  his  innate  fund  of  illustration,  of  every  con- 
ceivable form,  rendered  his  arguments  almost  irresistible.  He  was  so  plain 
so  clear,  so  conclusive  and  persuasive,  that  the  jury  would  hang  enraptured 
on  his  words  and  stories,  wondering  who  could  answer  his  flights  of  fancy  or 
turns  of  ingenuity.  He  was  a  born,  trained,  accomplished,  successful  advo- 
cate. He  won  all  cases  by  tact,  clearness  and  sterling  common  sense.  He 
never  confused  his  juries,  always  reasoned  with  them,  to  them,  and  through 
their  own  channels  of  everyday  thought.  They  admired  him  as  a  sort  of 
general-in-chief  in  a  court  room.  He  was  a  mixture  of  Clay  and  Webster, 
with  an  individuality  clearly  his  own.  Tall,  strong,  commanding,  impulsive, 
full  of  vital  energy,  reaching  an  early  prime  and  an  early  grave,  he  has 
stamped  his  character  upon  history  in  letters  bold  and  indelible. 

The  tribute  to  the  memory  of  Senator  Matt  H.  Carpenter,  deliv- 
ered by  Hon.  G.  W.  Hazelton,  at  the  special  meeting  of  the 
Milwaukee  Bar,  March  2d,  1881,  is  deemed  by  those  who  heard  it, 
one  of  the  best,  if  not  the  very  best,  of  all  the  addresses  delivered 
or  things  said  or  written  relative  to  the  lamented  senator's  death. 

ADDRESS   BY   G.  W.  HAZELTON. 

In  one  of  the  great  commercial  marts  of  the  mother  country 
stands  a  very  unique  and  significant  piece  of  statuary.  It  is  the 
figure  of  Lord  Nelson,  the  great  admiral,  whose  early  death  at  his 
post  of  duty  was  mourned  with  a  sincerity  and  depth  of  grief 
seldom  observed.  The  design  represents  him  as  just  reaching  forth 
to  accept  the  proffered  chaplet  of  victory,  when  death  interposes 
and  the  devoted  hand  is  stayed. 

The  artist's  conception  is  not  applicable  alone  to  him  for  whom 
it  was  designed.  It  fairly  symbolizes  the  gifted  and  distinguished 
character  who  falls  in  mid-career,  just  when  a  reasonable  anticipa- 
tion of  still  larger  triumphs  might  justly  be  indulged.  There  is  a 
poignancy  in  the  grief,  a  sadness  in  the  tear  that  falls  over  the 
death  of  such,  which  we  hardly  experience  when  one  goes  down  to 
his  grave  in  old  age,  like  an  ear  of  corn  fully  ripe. 

When,  after  years  of  diligent  and  patient  study,  after  a  succes- 


568  MODERN  JURY  TRIALS. 

sion  of  intellectual  triumphs,  one  comes,  with  mind  fully  equipped 
and  all  his  capabilities  at  their  best,  to  occupy  an  exalted  position 
in  the  eye  of  his  fellows  while  yet  in  the  prime  of  manhood,  it  is 
hard  to  contemplate  his  exit  from  earthly  scenes,  and  when  one 
falls  at  such  a  time,  he  falls  to  the  human  sense  prematurely,  and 
the  grief  occasioned  by  the  event  is  intensified  by  the  thought  that 
death  has  prevented  achievements  which  might  otherwise  be  fondly 
anticipated. 

But  it  may  justly  be  said  of  Mr.  Carpenter  that  he  lived  long 
enough  to  acquire  and  occupy  an  assured  and  recognized  position 
in  the  front  rank  of  his  profession.  Said  his  colleague,  in  announc- 
ing his  death,  "he  was  authority  in  the  senate  on  questions  of  con- 
stitutional law."  The  force  of  this  commendation  may  be  realized 
when  we  reflect  that  such  great  lawyers  as  Edmunds,  Thurman, 
Conkling  and  Davis  were  the  associates  of  the  deceased.  With  the 
discussion  and  settlement  of  the  important  constitutional  questions 
of  the  last  twenty  years  his  name  will  remain  prominently  asso- 
ciated. 

It  is  believed  that  no  member  of  the  bar  has  wielded  a  more 
potent  influence  during  these  eventful  years  with  the  Supreme 
Court  of  the  United  States,  or  was  listened  to  with  greater  interest. 
This  was  due  not  only  to  the  care  and  thoroughness  with  which  he 
prepared  and  mastered  his  cases,  but  also  to  his  almost  unequaled 
charm  of  voice  and  manner  at  the  bar.  It  was  always  a  pleasure 
to  hear  him,  no  matter  what  the  cause  he  was  arguing.  There  was 
a  buoyancy  and  brilliancy  about  his  manner  so  in  contrast  with  the 
ordinary  methods  of  discussing  dry  and  difficult  questions  in  the 
court-room  that  the  attention  was  at  once  arrested.  On  the  dryest 
subject  he  was  never  dry.  He  had  a  way  of  saying  things  that 
was  peculiarly  his  own,  without  affecting  or  seeming  to  be  peculiar- 
He  talked  about  the  points  involved  in  a  case  and  discussed  grave 
and  weighty  questions  of  law  almost  as  a  bird  sings. 

Language  came  to  him  as  from  an  exhaustless  repertory,  and  he 
never  had  to  pause  for  an  apt  and  felicitous  expression;  indeed,  so 
perfectly  fitted  was  his  language  to  his  thought  that  it  seemed 
born  with  it,  and  part  of  it. 

If  Mr.  Carpenter  had  genius,  it  was  the  genius  of  speech. 

No  judge  ever  went  to  sleep  while  he  was  talking.  No  one  ever 
seemed  tired  of  listening  to  him,  either  in  the  court-room  or  on  the 
popular  platform. 

I  remember,  many  years  ago,  while  Mr.  Carpenter  was  a  resident 
of  the  interior  of  the  state,  of  hearing  a  circuit  judge  refer,  with 
undisguised  enthusiasm,  to  the  fact  that  he  had  for  the  first  time 


MATT  CARPENTER.  569 

heard  Matt.  Carpenter  address  a  jury  in  a  cause  recently  tried  in  his 
court,  and  said  he  felt  sorry  when  he  finished  his  argument  to  the 
jury,  and  resumed  his  seat;  that  he  had  never  listened  with  such 
delight  to  any  court-room  address. 

But  no  one  has  a  right  to  attribute  Mr.  Carpenter's  eminence  as 
a  jurist  to  the  possession  of  genius.  I  do  not  mean  to  intimate  that 
he  had  not  rare  natural  gifts.  I  mean  to  say  that  he  worked  for 
his  position  in  the  profession,  as  few  students  of  this  or  any  other 
generation  nave  done.  However  it  may  be  with  poets  or  orators, 
lawyers  are  not  born.  The  eminence  they  acquire  at  the  bar,  other 
things  approximating  equality,  is  the  measure  of  their  diligence  in 
the  library,  and  their  devotion  to  the  study  and  analysis  of  the 
principles  of  jurisprudence. 

Hence  the  failure  of  so  many  men  in  our  profession,  who  leave 
the  college  with  a  reputation  for  brilliancy  and  genius.  Immediate 
friends  and  relatives  predict  for  these  young  prodigies  a  brilliant 
and  distinguished  career.  Their  anticipations  may  be  realized,  but 
the  probabilities  are  that  the  plodding  young  fellows,  who  appeared 
at  great  disadvantage  in  the  preparative  institutions,  and  were  only 
known  as  hard  students,  will  at  the  age  of  fifty  be  far  in  advance 
of  their  brilliant  associates  of  twenty  years  before. 

Those  who  knew  Mr.  Carpenter  best  need  not  be  reminded  of 
the  thoroughness  with  which  he  accepted  and  acted  upon  this  inex- 
orable law.  If  anyone  doubts  his  marvelous  industry,  let  him 
examine  the  reports  of  the  federal  courts  and  the  courts  of  Wis- 
consin for  the  past  thirty  years.  He  worked  out  his  results  as  a 
juridical  student  as  the  artist  works  out  his  conception  from  the 
quarried  marble.  He  burnt  the  midnight  oil  over  his  cases. 

He  left  no  field  unexplored  which  could  shed  light  upon  his  path, 
and  so  with  the  aid  of  a  mind  naturally  bright  and  comprehensive, 
and  a  strong  physical  organization,  he  pressed  his  way  by  the  most 
earnest  application  and  thorough  study,  step  by  step  to  the  front 
rank  of  a  noble  but  exacting  profession. 

A  few  years  ago,  when  some  friends  asked  him  to  join  in  an 
excursion  for  a  week's  recreation,  he  replied  that  he  should  not 
know  how  to  recreate — that  he  never  rested  a  day,  or  took  a  vaca- 
tion of  a  day,  since  admitted  to  the  bar. 

He  has  not  left  behind  him  a  more  diligent,  a  more  devoted 
student  in  the  profession.  The  secret  of  his  success  at  the  bar  may 
be  inferred  from  what  has  already  been  said,  but  it  will  not  be 
deemed  improper,  I  trust,  to  refer  to  some  of  his  mental  traits.  He 
possessed  the  ability  to  grasp  the  strong  points  of  a  case,  and  great 
readiness  and  skill  in  analyzing  and  distinguishing,  as  well  as  apply 


570  MODERN  JURY  TRIALS. 

ing  the  vital  principles  or  doctrine  of  cases  cited  in  support  of  or  in 
opposition  to  the  case  under  consideration.  In  this  particular  he 
was  conspicuous  and  masterly.  His  subtle  insight,  his  legal  acu- 
men, his  ready  ingenuity  were  never  displayed  to  better  advantage 
than  when  he  was  seeking  to  trace  a  legal  deduction,- which  he 
desired  to  establish  from  a  mass  of  apparently  conflicting  authori- 
ties. In  this  field  I  venture  to  suggest  he  has  left  behind  him  no 
superior.  To  the  qualities  already  mentioned  should  be  added  the 
potency  of  a  marvelous  personal  magnetism,  and  a  wit  which  seemed 
to  be  as  much  a  part  of  himself  as  the  fragrance  is  a  part  of  the 
rose.  A  wit,  moreover,  be  it  said  to  his  credit,  as  free  from  malice 
as  it  was  spontaneous  and  happy.  It  was  displayed  in  private  con- 
versation, in  the  court-room,  in  the  senate  chamber,  and  everywhere 
to  the  delight  of  his  auditors.  It  was  as  sparkling  as  the  choicest 
wine,  and  always  coined  upon  the  instant. 

"Put  him  out  1"  shouted  a  friend  of  the  senator,  when  some  one 
near  the  door  interrupted  the  speech  he  was  making  with  an 
impertinent  inquiry.  "No,"  retorted  Carpenter,  instantly;  "don't 
put  him  out;  change  his  drink  !" 

During  the  delivery  of  the  so-called  "  Janesville  speech,"  the 
effect  of  which  was  a  matter  of  some  anxiety  to  Mr.  Carpenter,  a 
confusion  occurred  at  the  rear  of  the  hall  which  diverted  the  atten- 
tion of  the  audience  for  a  moment  from  the  speaker.  Turning  to 
the  chairman  with  a  quizzical  expression  and  an  inquiring  tone,  he 
said:  "Mr.  Chairman,  I  observe  some  confusion  near  the  door;  I 
have  been  endeavoring  to  determine  whether  it  is  occasioned  by 
those  outside  trying  to  get  in,  or  those  inside  trying  to  get  out." 
A  moment  later  he  was  dashing  along  on  the  current  of  his  thought, 
like  a  yacht  before  the  wind. 

Of  Mr.  Carpenter's  career  as  a  statesman  I  have  not  time,  nor 
does  this  seem  the  appropriate  place  to  speak,  except  in  the  most 
summary  manner.  It  may,  however,  be  observed  that  statesman- 
ship never  was  a  study  with  him,  in  the  sense  that  jurisprudence 
was. 

When  he  entered  the  senate  in  1869,  at  the  age  of  forty-five,  he 
had  had  no  experience  of  affairs,  and  had  never  held  an  office  of 
any  kind  except  that  of  district  attorney  for  Rock  county.  Nor 
should  it  be  forgotten  that  during  the  entire  period  of  his  public 
life  he  never  relinquished  his  law  business,  or  abated  his  ardor  for, 
and  interest  in,  his  profession. 

The  marvel  is  that  he  has  been  able,  under  these  conditions,  to 
assume  so  prominent  a  part  in  the  debates  of  the  senate,  and  to 


BTOKES-PISK  CASE,  571 

evince  so  thorough  a  knowledge  of  the  many  important  and  inter- 
esting questions  under  consideration. 

He  was  a  man  of  broad  views,  of  warm  sympathies,  and  of  gen- 
erous sentiments;  and  while  his  public  career  has  been  honorable 
and  distinguished,  it  is  no  disparagement  to  him  to  say  that  his 
fame  as  an  eminent  lawyer,  and  a  brilliant  orator,  will  outlive  his 
fame  as  a  statesman.  To  admit  that  he  had  faults  is  only  to  admit 
that  he  was  human.  Let  him  who  has  none  point  them  out. 

That  his  memory  will  be  cherished  with  unfeigned  affection  by 
those  who  survive  him,  and  that  his  brilliant  achievements  at  the 
bar  and  on  the  platform  will  linger  in  the  traditions  of  this  and 
succeeding  generations,  it  is  scarcely  necessary  to  affirm. 

His  death  is  an  impressive  suggestion  of  the  brevity  as  well  as 
the  uncertainty  of  this  mortal  life,  and  recalls  with  startling  vivid- 
ness the  eloquent  lines  of  Gray : 

The  boast  of  heraldry,  the  pomp  of  power. 
And  all  that  beauty,  all  that  wealth  ere  gave, 

Await  alike  the  inevitable  hour — 
The  paths  of  glory  lead  but  to  the  grave. 


THE    STOKES-FISK   CASE. 

Tried  at  New  York,  October  S7,  1873. 

The  history  of  this  memorable  case  is  clearly  given  in  the  notes 
of  the  court  reporter  herewith  appended.  The  special  appeals  and 
new  trials  afford  abundant  instruction  in  the  finer  points  of  practice 
employed,  where  means  are  not  lacking  to  press  a  defense  to  its 
final  conclusion.  This  whole  trial  is  dense  with  rare  passages. 
The  ability  of  counsel  is  best  shown  by  their  success,  which  in 
this  case  seems  remarkable.  Trial  after  trial  is  secured,  and 
victory  after  victory  obtained. 

The  highest  talent  of  the  New  York  bar  was  engaged  in  the 
investigation  of  this  well-known  tragedy.  Men  of  national  repu- 
tation, like  Mr.  Tremain,  whose  wit  and  logic,  eloquence  and  con- 
summate skill  need  no  introduction  to  add  force  to  their  reasons  or 
attraction  to  their  eloquence.  Few  men  combined  such  a  diversity 
of  talent,  such  a  commanding  person,  and  such  conspicuous  deter- 
mination as  the  author  of  the  argument  here  reported.  It  is 


572  MODERN  JURY  TRIALS 

powerful,  pathetic,  and  at  times  sublime.  It  touches  the  keys  of 
passion  and  reason,  and  appeals  to  the  noblest  impulses.  It  should 
be  read  three  times  by  every  advocate  in  America.  It  is  a  fitting 
climax  of  a  brilliant  advocate's  successful  career  in  modern  jury 
trials.  Its  author  passed  to  his  reward,  soon  after  tnis  signal 
victory.  He  has  gone  to  meet  the  impartial  Judge  of  whom  he 
often  spoke  most  eloquently — where  masks  are  all  removed — where 
others  of  that  grand,  heroic  type  of  orators  have  gone  before — 
and  his  stirring  words  in  defense  of  Stokes  are  as  a  voice  from  the 
grave  and  worthy  of  a  place  in  the  lasting  remembrance  of  that 
language  which  moves  and  molds  the  minds  of  men — which  origin- 
ates ideas,  which  lift  us  out  of  ourselves  and  into  the  realms  of  rea- 
son— which  cuts  the  knots  of  legal  problems — which  chisels  away 
the  flinty  marble  and  leaves  a  life-like  figure  in  bold  relief.  This 
speech  is  a  monument  to  a  lawyer's  labor  and  industry.  It  is  more 
than  that;  it  is  an  inspiration  from  the  highest  source  of  oratory. 
It  is  authority  as  to  style  and  finish  of  the  art  of  all  arts — elo- 
quence. It  is  a  struggle  of  a  great  man  in  the  act  of  rescuing  a 
human  life,  and  whatever  may  be  said  of  the  guilt  or  innocence  of 
Stokes,  the  defense  based  on  four  separate  grounds,  was  ably  sus- 
tained on  each.  The  plea  of  insanity  was  but  one  of  the  columns 
of  the  mighty  structure;  others  were  also  strong.  In  the  study  of 
oratory,  so  much  neglected  of  late,  the  design  of  this  massive  argu- 
ment is  mentioned  as  a  model  for  imitation. 

[To  the  kindness  of  Hon.  R.  W.  Peckham,  of  Albany,  I  am 
indebted  for  the  pamphlet  report  to  make  the  extracts  of  this 
masterly  argument,  which,  in  full,  fills  one  hundred  and  forty-two 
pages,  necessarily  here  condensed.] 

STATEMENT. 

Edward  S.  Stokes  was  committed  to  prison,  charged  with  the 
murder  of  James  Fisk,  jr.,  on  the  sixth  day  of  January,  1872.  He 
was  speedily  indicted  by  the  grand  jury  on  this  charge.  To  this 
indictment  seven  special  pleas  were  interposed  by  his  counsel,  all 
attacking  the  indictment  on  the  ground  of  the  alleged  illegal  com- 
position of  the  grand  jury,  by  whom  it  was  found.  To  six  of  these 
pleas  the  district  attorney  demurred,  and  judgment  was  had  for  the 
People  on  these  demurrers.  To  one  plea  a  traverse  was  interposed, 
and  the  issues  thus  formed  were  tried  before  Mr.  Justice  Cardozo 
and  a  jury.  This  trial  began  12th  February,  1872,  and  was  termi- 
nated on  the  second  day  of  March,  by  a  verdict  of  the  jury  in 
favor  of  the  People,  rendered  under  the  instructions  of  the  court 


STOKES-  FISK  CASE.  573 

A  bill  of  exceptions  was  prepared,  embracing  all  the  proceedings 
of  this  preliminary  trial,  which,  by  order  of  the  justice  presiding, 
was  made  a  part  of  the  record  in  the  cause. 

S.  B.  Garvin,  then  district  attorney,  appeared  for  the  People, 
while  the  prisoner  was  represented  by  John  Graham,  John  McKeon, 
W.  O.  Bartlett,  Elbridge  T.  Gerry,  and  Willard  Bartlett.  After 
this  trial,  the  same  special  plea  was  again  interposed,  but  was 
stricken  out  on  motion  of  the  People. 

The  prisoner  was  then  arraigned  upon  the  indictment,  and  stand- 
ing mute,  a  plea  of  "  not  guilty  "  was  ordered  to  be  entered,  and 
on  the  seventeenth  of  June,  1872,  the  first  trial  on  the  charge  of 
murder  was  commenced  before  Mr.  Justice  Ingraham.  Seven  days 
were  spent  in  obtaining  a  jury,  and  the  case  was  submitted  to  them 
on  the  thirteenth  of  July,  and  on  the  sixteenth,  being  unable  to 
agree,  they  were  discharged. 

The  defense  rested  practically  upon  four  propositions:  (1)  The 
People  failed  to  prove  a  case  of  premeditated  murder;  (2)  Upon  the 
case  made  by  the  People,  it  was  at  most  manslaughter  in  the  fourth 
degree;  (3)  That  the  killing  was  justifiable;  (4)  That  the  deceased 
did  not  die  from  the  effects  of  the  shots,  but  from  the  effects  of  the 
medical  treatment  to  which  he  was  subjected. 

On  the  eighteenth  day  of  December,  1872,  the  prisoner  was  again 
placed  on  trial.  Under  peremptory  instructions  from  the  prisoner, 
his  counsel  withheld  from  the  second  trial  all  the  medical  evidence, 
and  the  case  went  to  the  jury  mainly  on  the  single  issue  thus 
stated  in  the  opening  for  him,  "  our  defense  is  self-defense." 

This  trial  terminated  on  Saturday  night  at  about  11.30  o'clock, 
in  a  verdict  of  murder  in  the  first  degree.  And  the  prisoner  was, 
on  the  sixth  day  of  January,  just  two  years  from  the  date  of  the 
homicide,  sentenced  to  be  hanged  on  the  twenty-eighth  day  of 
February  following. 

A  motion  was  soon  made,  on  numerous  affidavits,  at  the  same 
term  of  the  oyer  and  terminer,  to  set  aside  the  verdict,  and  for  a 
new  trial  on  several  grounds,  viz.,  newly  discovered  evidence; 
misconduct  of  the  jury;  absence  of  the  prisoner  while  trial  was  in 
progress;  that  some  of  the  jurors  were  incompetent  to  sit,  they 
having  formed  and  expressed  opinions  adverse  to  the  prisoner;  and 
absence  of  the  presiding  justice  while  the  summing  up  proceeded. 
This  motion  was  denied. 

A  bill  of  exceptions  was  prepared,  and  the  motion  for  a  writ  of 
error  with  a  stay  argued  at  great  length  for  the  prisoner  by  Mr. 
Tremain,  before  Davis,  J.,  who  took  time  to  consider,  and  then 
rendered  a  full  opinion,  in  which  he  selected  as  ground  for  his  deci- 


574  MODERN  JURY  TRIALS. 

sion  the  alleged  error  in  the  charge,  which  will  be  hereafter  noticed 
A  writ  of  error,  with  a  stay,  was  granted.  In  order  that  no  point 
in  the  case  might  be  lost,  a  motion  was  then  made  to  compel  the 
clerk  to  annex  the  record  of  "the  trial  of  the  grand  jury,"  as  it 
was  termed,  to  the  principal  record.  This  was  denied. 

For  the  purpose  of  bringing  up  the  alleged  irregularities  occur- 
ring on  the  trial,  the  practice,  supposed  to  be  obsolete,  of  assigning 
errors  in  fact  was  resorted  to,  and  an  elaborate  assignment  of  such 
errors  was  prepared,  in  which  the  defendant  in  error  was  required 
to  join  within  twenty  days.  Two  writs  of  certiorari  were  also 
issued,  one  to  bring  up  the  papers  used  on  the  motion  for  a  new 
trial,  and  on  the  motion  to  correct  the  record,  and  the  other  to 
bring  up  the  record  of  "the  trial  of  the  grand  jury,"  and  proper 
returns  obtained.  A  new  motion  for  a  new  trial,  in  substance 
identical  with  that  made  at  the  oyer  and  terminer,  were  also  pre- 
pared tor  the  general  term. 

The  record,  when  printed,  covered  twelve  hundred  and  seventy- 
eight  octavo  pages,  and  was  ready  for  service  eight  days  befoi'e 
the  day  fixed  for  the  hearing  of  the  case  at  the  general  term,  viz., 
22d  April,  1873. 

The  general  term,  on  motion  of  the  district  attorney,  struck  out 
the  assignment  of  errors  in  fact,  and  denied  the  motion  for  a  new 
trial.  The  principal  cause  was  then  argued  at  length  by  Benj.  K. 
Phelps,  district  attorney,  and  William  Fullerton,  for  the  People, 
and  Lyman  Tremain,  orally,  and  John  R.  Dos  Passes,  on  printed 
brief,  for  the  prisoner,  before  Brady,  Fancher  and  Davis,  JJ.,  con- 
stituting the  general  term. 

On  the  7th  day  of  May  the  general  terra  affirmed  the  convic- 
tion, Brady  and  Fancher,  JJ.,  rendering  opinions,  Davis,  J.,  nei- 
ther concurring  nor  dissenting,  in  writing. 

By  appropriate  proceedings  the  cause  was  at  once  carried  to  the 
court  of  appeals,  and  set  for  argument  for  the  26th  day  of  May. 
********** 

On  the  10th  day  of  June  the  court  of  appeals,  by  a  unanimous 
vote,  reversed  the  conviction,  and  remitted  the  cause  to  the  oyer 
and  terminer.  Judge  Grover  concluded  the  leading  opinion  with 
these  remarks  :  "  But  for  errors  in  rejecting  competent  evidence 
offered  by  the  prisoner  and  in  receiving  incompetent  evidence 
against  him,  and  in  the  part  of  the  charge  excepted  to,  the  judg- 
ment must  be  reversed  and  a  new  trial  ordered." 

Among  the  numerous  rulings  of  the  court  of  appeals  some  are  of 
general  importance,  viz.  :  That  the  new  jury  law  is  constitutional  j 
that  threats  by  the  deceased  against  the  prisoner,  though  not  com- 


8TOKES-FISK  CASE.  575 

mnnicated  to  him,  were  admissible,  it  being  alleged  by  the  defense 
that  Fisk  was  then  in  the  act  of  assaulting  the  prisoner. 

The  portion  of  the  charge  on  which  the  stay  of  proceedings  waa 
granted  is  as  follows  : 

"  The  fact  of  the  killing  in  this  case  being  substantially  con- 
ceded, it  becomes  the  duty  of  the  prisoner  here  to  satisfy  you  that 
it  was  not  murder,  which  the  law  would  imply  from  the  fact  of 
killing  under  the  circumstances,  in  the  absence  of  explanation  that 
it  was  manslaughter  in  the  third  degree,  or  justifiable  homicide, 
because,  as  I  have  said,  the  fact  of  killing  being  conceded,  and  the 
law  implying  malice  from  the  circumstances  of  the  case,  the  prose- 
cutor's case  is  fully  and  entirely  made  out,  and  therefore  you  can 
have  no  reasonable  doubt  as  to  that,  unless  the  prisoner  shall  give 
evidence  sufficient  to  satisfy  you  that  it  was  justifiable  under  the 
circumstances  of  the  case." 

The  language  of  the  statute  of  New  York  is,  that  such  killing, 
unless  it  be  manslaughter,  excusable  or  justifiable  homicide,  shall 
be  murder  in  the  first  degree  "  when  perpetrated  from  a  premedi 
tated  design  to  effect  the  death  of  the  person  killed  or  of  any 
human  being." 

The  court  of  appeals  said  :  The  jury  "  were  virtually  instructed 
that  the  killing  being  conceded,  they  should  convict  of  the  crime  of 
murder  unless  the  proofs  adduced  by  the  prisoner  satisfied  them 
that  the  circumstances  under  which  the  killing  took  place  were 
such  as  to  justify  his  act,  or  reduce  the  grade  of  his  offense. 
Though  upon  the  whole  evidence  they  might  be  in  doubt  as  to  what 
the  circumstances  really  were,  the  killing  being  conceded,  this 
charge  indicated  that  it  was  their  duty  to  convict." 

The  cause  was  argued  orally  by  Benj.  K.  Phelps,  district  attor- 
ney, for  the  People,  and  by  Lyman  Tremain  for  the  prisoner;  Mr. 
Fullerton  signed  the  printed  argument  for  the  People,  and  Mr. 
Dos  Passes  and  Cephas  Brainerd  submitted  printed  arguments  for 
the  prisoner. 

On  the  8th  day  of  October,  1873,  the  third  trial  of  Edward  S. 
Stokes  was  commenced.  The  first  day  was  occupied  in  the  discus- 
sion of  a  challenge  to  the  array,  which  was  sustained  on  the  demur- 
rer of  the  People.  The  district  attorney  then  proposed  to  traverse 
the  challenge,  but  the  counsel  for  the  prisoner  having  become 
satisfied  by  conference  with  the  commissioner  of  jurors  that  the 
challenge  was  at  best  but  technically  sustainable,  it  was  withdrawn. 

Since  the  last  trial  the  legislature  had  made  the  court  the  trier  of 
all  challenges.  This  it  was  supposed  would  facilitate  the  work  of 
obtaining  a  jury.  The  panel  was  completed  in  five  days. 


576  MODERN  JURY  TRIALS. 

The  trial  proceeded  rapidly,  the  court  opening  very  early  and 
closing  late,  and  sitting  on  Saturdays  ;  it  terminated  October  20th 
in  a  verdict  of  the  jury  of  manslaughter  in  the  third  degree,  upon 
which  the  prisoner  was  sentenced  to  four  years'  imprisonment  at 
hard  labor  in  the  state  prison. 

The  grounds  of  defense  on  the  last  trial  are  clearly  stated  in  the 
summing  up  of  Mr.  Tremain,  as  also  the  claims  of  the  People. 
The  case  of  the  People  was  conducted  by  Mr.  Phelps,  district 
attorney,  and  Horace  Russell,  his  first  assistant  ;  and  for  the  pris- 
oner by  Messrs.  Tremain,  Dos  Passes  and  Brainerd. 

The  writer  of  this  note  had  considerable  knowledge  of  the  case 
from  the  time  of  the  conviction  for  murder  to  the  end  ;  and  he 
considers  it  fit  to  say  that  the  proceedings  on  the  part  of  the 
People  were  conducted  by  Messrs.  Phelps  and  Russell  with  a 
marked  courtesy  and  fairness  toward  the  prisoner  and  his  counsel, 
which  they  gratefully  appreciated  ;  and  with  a  surpassing  indus- 
try and  consummate  ability  and  skill,  which  should  be,  and,  in  fact, 
are,  a  just  ground  for  pride  on  the  part  of  the  citizens  of  New 
York  in  these  faithful  officers.  Of  the  defense  he  cannot  b« 
expected  to  speak. 

The  legal  profession  has  abundant  cause  for  regret  that  there 
has  never  been  a  full  professional  account  of  this  cause  published. 
It  involved  many  difficult  and  obscure  questions,  was  tried  with 
great  skill,  and  a  detailed  report  would  be  of  great  value  to  stu- 
dents in  criminal  law. 

MB.  TBEMATN'S  SUMMING  UP. 

After  an  exhaustive  argument  on  the  law  of  the  case,  and  the 
prayers  for  instruction  to  the  jury  (forty-six  in  number),  relating 
to  premeditation,  intent  to  kill,  hostile  relations,  temper  of  Fisk, 
different  degrees  of  manslaughter,  "  that  the  evidence  must  exclude 
to  a  moral  certainty  every  hypothesis  but  of  guilt,  and  be  con- 
sistent with  all  the  facts  to  convict."  Also,  as  to  wounds  and  poi- 
son, probing,  insanity,  justifiable  homicide,  credibility  of  witnesses, 
reasonable  doubt,  etc. 

The  learned  counsel  next  proceeded  to  answer  the  district  attor- 
ney's opening  address,  during  which  a  sharp  discussion  occurred 
between  Mr.  Tremain  and  the  court,  and  developed  that  signal 
courage  and  boldness  for  which  this  advocate  was  so  long  noted. 

He  was  a  giant  in  frame,  although  but  five  feet  ten  inches  in 
height,  very  vindictive  when  roused,  and  felt  his  physical  force  and 
robust  courage.  Personally  Mr.  Tremain  was  nearly  sixty-five,  of 
medium  height  and  strongly  built,  dark  complexion  and  dark  hair; 


8TOKES-FISK  CASE.  577 

a  large  forehead,  a  smoothly  shaven  face  except  an  imperial.  He 
was  adroit  in  the  management  of  facts,  forcible  and  ingenious  in 
argument  and  learned  in  law. 

This  was  his  last  great  jury  trial,  and  presents  a  true  picture  of 
one  of  his  brilliant  efforts  as  an  advocate  and  counsel.  It  need 
scarcely  be  said  that  in  his  prime  he  was  an  equal  to  the  brightest 
of  the  famous  advocates  of  the  New  York  bar.  His  manner  was 
kindness  itself  when  well  used,  but  more  like  the  elder  Booth  or 
Edwin  Forest  when  crossed  or  assailed.  He  had  that  hot,  impetu- 
ous manner,  and  his  words  were  cannon-balls  to  his  enemies.  His 
sentences  are  of  the  Websterian  order,  logical  and  powerful. 

Mr.  Tremain's  quotations  from  Cicero  are  exceedingly  apt  and 
rare.  He  was  familiar  with  oratory  as  a  science,  and  made  a  care- 
ful study  of  the  style  of  the  prince  of  Roman  orators  with  whose 
ripe  thoughts  his  mind  was  richly  stored. 

He  said: 

Gentlemen  of  the  Jury — I  propose  to  divide  my  argument  before 
you,  upon  the  great  and  serious  charge  to  which  I  have  referred, 
the  charge  of  murder  in  the  first  degree — a  charge  that  in  all  ages, 
and  all  countries,  has  been  regarded  as  the  most  atrocious  and 
wicked  that  is  recognized  in  the  criminal  code,  except  treason — 
into  four  general  heads  : 

1.  Did  the  prisoner  inflict  the  mortal  wound  with  the  pistol  he 
held  in  his  hand,  of  which  mortal  wound  James  Fisk  died? 

2.  If  he  did,  was  the  act  murder,  or  manslaughter  in  one  of  the 
lesser  degrees  ?     And,  in  considering  this  question,  I  shall  leave 
entirely  out  of  view,  the   question   proved   by  the  oath  of  the 
prisoner,  as  to  whether  Fisk  had  a  pistol  or  not.     I  shall  ask  you 
to  consider  that  point  in  the  light  of  the  other  evidence  in  the  case, 
and  under  this  head  shall  only  discuss  the  question,  whether,  wholly 
irrespective  of  the  two  next  points  to  which  I  shall  call  your  atten- 
tion, you  can,  under  your  oaths,  and  according  to  your  consciences, 
find  a  verdict  of  murder? 

3.  The  third  general  head  which  I  shall  consider  is :    If   the 
prisoner  killed  James  Fisk,  was  that  killing  justifiable  homicide? 

4.  If  he  killed  James  Fisk,  and  that  killing  was  not  justifiable 
homicide,  was  the  prisoner  sane  or  insane,  within  the  meaning  of 
the  statute,  passed  in   1830,  and  which   has  remained  upon  the 
statute  books  of  the  state  ever  since,  in  these  words:     "No  per- 
son shall  be  punished  for  any  act  committed  while  in  a  state  of 
insanity." 

First.    Did  the  prisoner  inflict  a  mortal  wound,  and  did  the 
ST 


578  MODERN  JURY  TRIALS. 

deceased  die  of  the  effects  of  that-  mortal  wound  ?  You  will 
observe  my  proposition  does  not  include  the  question,  whether  he 
died  from  the  joint  effects  of  the  wound  and  some  other  agnecy. 
There  is  no  such  charge  in  this  indictment ;  it  contains  but  one 
count,  and  that  count  I  have  already  stated  to  you.  And  here  I 
affirm  and  shall  endeavor  to  maintain  by  argument,  a  proposition, 
which  of  course  you  will  dismiss,  except  so  far  as,  by  solid  reason- 
ing, my  proposition  shall  commend  itself  to  your  favor.  I  claim, 
that  upon  this  corner-stone  of  the  case,  the  prosecution  has  entirely 
failed.  Remember,  gentlemen,  that  the  burden  rests  upon  the 
people;  remember  that  the  law  in  its  humanity  declares,  if  there  is 
a  reasonable  doubt  in  the  minds  of  the  jury,  not  merely  upon  the 
whole  case,but  upon  any  one  branch  of  it,  you  are  bound  by  that 
oath  you  have  registered  in  Heaven,  to  pronounce  a  verdict  of  not 
guilty. 

The  next  kindred  proposition  I  shall  endeavor  to  establish  in 
the  same  connection  is,  that  upon  this  testimony  it  is  far  more 
probable  that  the  cause  of  James  Fisk's  death  was  the  administra- 
tion of  a  deadly  poison  and  unskillful  treatment,  than  the  propo- 
sition to  be  sustained  by  the  government,  that  he  died  from  the 
effects  of  the  mortal  wound.  It  is  not  incumbent  upon  me  to  show 
clearly  that  he  died  of  morphia.  It  is  enough  that  I  meet  the  case, 
as  it  is  presented  by  the  learned  representative  of  the  government. 
If  I  establish  the  fact  upon  this  whole  case  ;  if,  looking  at  the 
medical  evidence  and  the  surrounding  circumstances,  you  are  not 
prepared  to  say,  in  your  very  heart  of  hearts,  that  sacred  deposi- 
tory where  the  mental  operations  culminate  and  come  to  a  conclu- 
sion, if  you  are  not  able  to  say  beyond  a  reasonable  doubt,  that 
Fisk  did  die  from  the  morphia,  or  from  the  joint  effects  of  the 
morphia  and  the  wound,  or  rather  if  you  are  not  able  to  say  that 
you  are  satisfied,  beyond  all  doubt,  that  he  died  from  the  effects  of 
this  mortal  wound  alone,  you  cannot  convict  of  murder. 

The  law  is,  that  if  the  person  injured  die  at  any  time  within  one 
year  and  a  day  from  the  time  that  the  mortal  wound  was  inflicted, 
the  killing  may  be  murder.  Therefore,  if  this  wound  was  a  mortal 
wound,  although  it  did  not  terminate  fatally  until  one  year  after 
it  was  inflicted,  it  was  murder,  just  the  same  as  if  the  killing  was 
instantaneous.  If  a  man,  having  a  mortal  wound  inflicted  upon 
him  that  may  terminate  at  some  unknown  future  period  within  a 
year  and  a  day,  no  matter  whether  it  be  one  hour,  twenty-four 
hours  or  twelve  months  afterward,  yet,  by  means  of  some  inde- 
pendent affirmative  intervening  agency  he  dies,  he  does  not  die  of 
the  wound.  If  even  an  unskillful  physician,  by  such  practices  aa 


8TOKES-FISK  CASE.  570 

teould  constitute  manslaughter  under  our  statute,  causes  death  at 
the  end  of  one  hour,  one  day,  or  ten  months,  an  indictment  against 
him  for  manslaughter  would  be  sustained,  if  the  fact  be  estab- 
lished that  the  physician  caused  the  death  ;  and  it  would  be  no 
defense  to  that  physician  that  the  party  had  a  mortal  wound  from 
which  he  would  have  died.  There  cannot  be  two  distinct  and 
independent  authors  of  one  death,  and  it  is  of  no  sort  of  conse- 
quence, as  I  shall  show  you  by  the  law,  whether  the  intervening 
agency  was  wilful  and  intentional,  or  whether  it  was  with  an 
honest  design  and  desire  to  save  the  life.  If  a  physician,  honestly 
designing  to  save  life,  employs  a  deadly  drug,  and  that  deadly 
drug  or  poison  dries  up  the  sources  of  life  and  the  person  suffer- 
ing either  from  a  mortal  wound  or  from  disease  dies,  it  would  be 
a  false  verdict  to  say  that  he  died  from  the  effects  of  the  mortal 
wound.  The  language  of  the  indictment  is  plain,  simple  and 
easily  comprehended.  No  sophistry  of  the  district  attorney,  no 
charge  of  the  judge  can  mystify  it.  Did  he  die  of  that  mortal 
wound,  or  did  he  not? 

That  brings  me,  then,  to  the  question  presented  upon  the  whole 
evidence,  whether  the  prosecution  has  proved  that  he  died  from 
the  wound.  Remember  that  the  burden  rests  upon  the  govern- 
ment; it  is  not  for  us  to  show  that  he  died  of  poison,  nor  that  he 
may  have  died  of  poison;  it  is  for  the  prosecution  to  show  that  he 
died  from  the  wound,  and  that  only;  and  if  our  testimony  has  been 
of  such  a  character  as  to  create  a  reasonable  doubt  upon  that  fun- 
damental ingredient,  that  corner  stone  of  the  case,  that  essential 
element  of  this  crime  of  murder,  it  is  no  matter  how  guilty  may 
have  been  the  prisoner,  no  matter  whether  sane  or  insane,  no  matter 
whether  acting  in  self-defense  or  not,  the  prosecution  has  broken 
down,  and  however  guilty  in  your  hearts  you  may  believe  the 
prisoner  to  have  been  of  moral  crime  and  of  malicious,  willful, 
diabolical  intention,  yet,  in  the  language  of  Marshall,  the  learned 
and  eminent  Chief  Justice  of  the  United  States,  when  he  presided 
upon  the  trial  of  Aaron  Burr  for  treason,  and  the  whole  country 
was  ringing  with  anathemas  against  the  prisoner,  who,  it  was 
believed,  had  sought  to  break  in  pieces  this  Union  and  establish  a 
hostile  government  ou  its  ruins,  of  which  he  should  be  the 
chief,  Marshall  saved  him  by  holding  the  scales  of  justice  firm 
and  equal  as  between  the  prisoner  and  an  infuriated  multitude, 
when  he  said,  in  substance,  "  This  man  may  be  guilty,  but  upon 
the  evidence  and  the  law  applicable  to  it,  he  cannot  be  convicted." 
******* 

But,  gentlemen,  we  do  not  rest  here.     We  called  upon  the  stand 


680  MODERN  JURY  TRIALS. 

Dr.  McCready,  whose  position  in  his  profession  may  be  inferred 
from  the  fact  that  he  wrote  the  article  on  vegetable  poisons  pub- 
lished in  Beck's  Medical  Jurisprudence,  a  work  that,  for  the  last 
fifteen  or  twenty  years,  has  been  regarded  as  a  standard  authority 
in  the  legal  and  medical  profession;  a  work  edited  by  Dr.  Beck, 
who  resided  in  the  city  where  I  reside,  and  was  the  president  of 
the  Albany  Medical  College;  a  gentleman  who  has  earned  a  title  to 
the  honorable  recognition  of  both  professions  by  his  great  work, 
and  to  the  pages  of  which  no  tyro,  no  sophomore,  no  deputy 
coroner,  appointed  by  the  political  authorities  of  New  York,  no 
man,  in  short,  except  a  man  standing  in  the  foremost  ranks  of  his 
profession  would  be  permitted  to  contribute.  He  comes  upon  the 
stand,  venerable,  learned,  experienced,  free  from  any  influence  in 
favor  of  the  prisoner,  no  relationships  controlling  or  influencing 
him,  jealous,  doubtless,  of  the  honor  of  that  medical  profession 
with  which  he  is  identified,  having  filled  many  positions,  which 
none  but  those  of  great  distinction  and  high  eminence  in  his  pro- 
fession would  be  permitted  to  occupy;  he  narrates  to  you,  with 
the  clearness  of  a  man  of  intelligence,  experience  and  skill,  the 
progress  and  symptoms  of  poisoning  by  morphia ;  he  endorsed 
emphatically  the  medical  works  which  laid  upon  this  table,  and 
with  which  we  might,  if  necessary,  occupy  your  time  in  reading; 
it  is  enough  for  me  that  we  read  from  Taylor  on  Poisons,  a  work 
written  by  a  most  eminent  English  physician  and  surgeon,  showing 
you  that  where  two  grains  are  administered,  within  so  short  a  time 
as  the  drug  was  given  to  Fisk  and  the  patient  does  not  die,  it  is  the 
exception  to  the  rule.  He  then  proceeded  to  relate,  step  by  step, 
the  opinions  that  the  profession  entertain  upon  the  two  great  ques- 
tions involved  in  this  case,  first,  whether  the  symptoms  indicated 
shock,  continuing  down  to  the  time  of  death,  and  causing  dissolu- 
tion, or  whether  the  symptoms  indicated  poisoning  by  morphia  or 
salt  of  opium,  preceded  by  the  stupor  or  deadly  coma,  and  result- 
ing finally  in  death,  at  the  end  of  about  twelve  hours  from  the 
time  when  the  last  dose  is  administered,  that  being  the  ordinary 
period  within  which  you  may  expect  such  a  result,  though  he  says 
death  might  result  at  any  time  within  twelve  or  twenty-fonr 
hours;  and  all  this  was  administered  right  along,  as  I  have  shown 
you,  in  this  short  interval  of  time,  terminating  at  10.45,  in  the 
evening,  and  the  patient  died  at  eleven  the  next  morning,  about 
twelve  hours  afterwards. 

******* 
We  have  produced  the  most  eminent  physicians  and  surgeons, 
who  swear  they  have  successfully  treated  cases  of  this  character 


STOKES-FISK  CASE.  581 

ind  other  cases  of  a  similar  character  where  there  were  more  severe 
abdominal  wounds  penetrating  the  intestines,  and  in  all  these  cases 
the  patients  recovered.  We  have  shown  you  from  medical  author- 
ities and  from  printed  records  published  by  official  sanction,  that 
such  cases  do  entirely  recover.  It  is  fully  proved  affirmatively 
that  such  wounds  are  not  necessarily  fatal.  We  have  also  clearly 
demonstrated  that  such  a  succession  of  doses  of  morphia  given 
within  the  same  short  period  of  time  that  these  were  given,  would 
be  almost  sure  to  kill,  and  that  even  one-eighth  of  a  grain  of  this 
deadly  drug  has  killed.  The  district  attorney  has  not  attempted 
to  disprove  any  one  of  the  cited  cases,  or  any  one  of  these  well- 
known  facts.  He  simply  brings  other  doctors  here  who  testify  that 
in  their  own  particular  experience  they  have  not  successfully 
treated  their  cases,  but  that  all  their  cases  resulted  fatally. 

Now,  the  evidence  of  the  government  did  not  show  so  much  what 
caused  the  death  as  it  revealed  the  utter  recklessness  with  which 
James  Fisk  was  treated,  and  the  apparent  indifference  shown  to 
the  chances  of  his  recovery.  How  about  that  probe  ?  Why,  every 
physician  and  surgeon  examined  on  the  point  states  that  the  man 
who  passes  a  probe  into  the  abdominal  cavity  must  be  a  madman  ! 
Marsh,  their  witness,  says  it;  Wood,  their  witness,  says  it;  Car- 
nochan  and  Thompson  say  that,  even  though  upon  &  post-mortem 
examination  you  do  not  find  the  evidence  of  peritonitis  at  the  end 
of  the  probe,  yet  that  the  use  of  the  probe  under  such  circum- 
stances would  be  likely  to  increase  the  effect  of  the  shock.  In  the 
hands  of  a  very  skillful  man,  who  knows  within  a  hair's  breadth 
where  the  line  is  that  separates  the  adipose  matter  from  the 
entrance  to  the  abdominal  cavity,  and  is  sure  not  to  pass  it,  such  a 
probe  may  be  used.  It  is  a  very  delicate  instrument,  requiring 
most  extraordinary  skill  in  its  employment.  In  this  case,  we  find 
Dr.  Tripler  using  it,  according  to  the  testimony  of  Curtis,  Tripler 
and  White  at  one  time  together,  and  Tripler  afterwards  alone — in 
all  about  seven  minutes,  he  says,  according  to  my  recollection  of  it, 
when  he  leaves  the  room  and  goes  away.  Byrne  leaves  the  room 
with  Tripler  probing  around,  and  feeling  around  as  if  he  was 
searching  in  some  gold  mine.  How  long  he  continued  his  probing, 
God  only  knows;  we  shall  not  be  enlightened,  for  Tripler  is  not 
here;  the  prosecution  don't  bring  him  forward;  they  don't  bring 
Dr.  Sayre;  this  time  they  don't  bring  Dr.  White,  Fisk's  family 
physician,  nor  Dr.  Steele.  But  he  is  probing,  this  Tripler,  a  hotel 
doctor,  boarding  at  the  house,  who  catches  hold  of  this  case  with 
Dr.  Fisher,  and  takes  charge  of  it  to  the  end;  you  find  him  feeling 
and  digging  round  in  Fisk's  abdomen  until  this  witness  leaves  him 


582  MODERN  JURY  TRIALS. 

there,  and  whether  the  probe  passed  into  the  abdominal  cavity  or 
not  is  one  of  those  things  that  nobody  can  tell  us  about;  and  I  am 
afraid,  now  that  Tripler  does  not  come  on  to  the  stand,  it  will 
never  be  revealed  in  this  world. 

Quiet  was  necessary,  was  it  not?  The  only  chance  of  recovery, 
all  the  medical  gentlemen  agree,  in  such  a  case,  was  in  the  absence 
of  all  outside  excitement.  Who  are  in  the  bed-room  of  this  man  ? 
William  M.  Tweed  !  Jay  Gould  !  Fisk's  co-directors,  coadjutors. 
co-political  conspirators,  co-everything — they  are  there  !  White 
discovers  the  presence  of  Tweed,  who  is  a  conspicuous  man — a  very 
conspicuous  man — and  White  then  clears  them  out  as  far  as  he 
can.  The  character  of  Fisk  has  been  detailed  here  on  our  side  for 
purposes  that  are  legitimate,  and  to  which  I  shall  hereafter  call 
your  attention;  but  where  are  Tweed  and  Gould,  and  the  men  who 
knew  him,  and  who  are  wanted  on  this  trial  to  sustain  his  charac- 
ter? Where  are  the  men  who  in  the  days  of  his  prosperity 
enjoyed  his  hospitality  and  gold  ?  Where  are  the  men  who 
shouted  as  he  rode  along  your  streets  and  touched  their  hats  to  the 
"Prince  of  Erie; "  who  bent  the  knee  as  he  approached,  or  threw 
open  the  doors  of  the  Grand  Jury  room,  or  walked  arm  in  arm  with 
him,  or  perhaps  presided  in  your  courts,  for  he  boasted  that  he 
could  "railroad"  my  client  to  "state  prison,"  a  boast  that  implied 
extraordinary  power  over  the  judicial  machinery  of  this  city  ? 
Where  are  they  ?  They  were  there  at  his  bedside — a  dozen  men, 
according  to  White,  going  in  and  out  of  the  room.  This  evinces  an 
entire  disregard,  on  the  part  of  those  medical  gentlemen,  of  those 
precautions  and  safeguards  and  of  that  skillful  treatment  which 
James  Fisk  was  entitled  to  receive;  and  remember  also  in  this  con- 
nection that  this  poison  was  administered,  not  as  Dr.  Wood  wanted 
it  administered,  but  injected  hypodermically;  whether  they  kept 
their  fingers  upon  his  pulse,  under  the  advice  of  Dr.  Wood,  for  the 
reason  as  he  expressed  it,  that  two  lives  were  involved  in  the  result — 
the  life  of  Fisk  and  the  life  of  Stokes — we  have  no  evidence, 
although  all  the  symptoms  and  treatment  are  fully  and  minutely 
disclosed  in  the  written  memoranda  made  by  Dr.  Fisher  at  the 
time.  There  is  no  evidence  that  they  kept  their  fingers  on  his 
pulse  when  giving  this  poison;  on  the  contrary,  the  indications  of 
the  effect  of  the  poison  are  utterly  inconsistent  with  the  presence 
of  any  such  precaution.  The  appearance  of  the  heart,  the  right 
lobe  of  the  heart,  filled  with  blood  on  both  sides,  is  proved  posi- 
tively by  Dr.  Carnochan  and  by  Dr.  Shine;  the  exudation  of  this 
watery  matter  from  the  brain,  is  proved  by  the  same  two  witnesses, 
for  it  is  not  one  witness  that  we  rely  upon;  true  we  don't  find  it 


8TOKES-FI8K  CASE.  533 

noticed  in  the  coroner's  notes,  of  course  not;  but  now  it  is  disclosed, 
it  is  laid  bare  before  you.  You  have  the  testimony  of  this  array  of 
medical  gentlemen  on  one  side;  Carnochan,  McCready,  Thompson, 
Shine,  Leale,  and  I  shall  take  in  "Wood,  who  says  the  wound  was 
not  necessarily  mortal,  all  showing  a  state  of  facts  that  are  utterly 
inconsistent  with  the  theory  of  the  prosecution  that  James  Fisk 
died  from  the  effects  of  the  wound. 

Considering,  therefore,  the  age  and  constitution  of  Fisk;  consid- 
ering the  strength  he  displayed  immediately  after  receiving  the 
wound;  considering  the  presence  of  that  clear  intelligence  which 
was  exhibited  at  every  stage  in  the  history  of  this  case,  from  four 
o'clock  in  the  afternoon  until  coma  intervened;  considering  that  the 
pulse  had  become  natural,  the  respiration  normal,  that  the  physi- 
cians discovered  the  presence  of  all  those  welcome  symptoms  which 
indicated  that  the  shock  had  spent  its  force  and  nature  was 
resuming  her  control  of  this  man's  case;  considering  the  presence 
of  that  stertorous  breathing,  which  is  accepted  by  all  the  medical 
witnesses  as  not  only  indicating  the  presence  of  poison,  but  abso. 
lutely  disproving  the  presence  of  shock;  considering  the  enormous 
quantity  of  this  deadly  drug  which  was  administered  to  him  sub- 
cutaneously  and  at  the  mouth  within  the  short  space  of  time  we 
have  narrated  before  you,  and  that  the  patient  after  that  continued 
conscious  until  about  five  o'clock  in  the  morning;  considering  that 
there  was  no  other  cause  of  death  that  could  possibly  produce  it, 
upon  the  theory  that  the  wound  caused  it,  except  the  shock,  for  the 
peritonitis  was  a  symptom  scarcely  to  be  considered  here,  as  Dr. 
Wood  says — the  peritonitis  being  an  element  in  favor  of  recovery 
in  this  case,  because  it  was  nature's  mode  of  throwing  out  the  heal- 
ing remedies  and  substances  that  would  produce  a  restoration  of 
health;  considering  that  he  passed  into  a  state  of  coma,  not  indica- 
tive of  death  by  shock,  but  a  sure  symptom  of  fatal  poisoning,  and 
that  he  died  at  the  end  of  nineteen  hours  from  the  time  that  he 
received  the  injury;  and  then,  considering,  finally,  that  the  medical 
testimony  entirely  overbalances  the  theory  of  the  prosecution,  and 
not  merely  upon  the  facts  found,  but  upon  the  opinions  of  gentle- 
men of  the  highest  standing  in  the  medical  profession,  it  appears 
this  man  died,  not  from  the  wound,  but  from  the  poisoning.  I  ask 
you,  gentlemen,  whether,  as  conscientious  men,  not  influenced  by 
the  prejudices  of  the  hour — for,  thank  God,  I  believe  I  see  the  sil- 
ver lining  on  the  cloud,  I  believe  we  have  at  last,  after  two  years 
of  struggle,  reached  a  period  when  the  public  mind,  that  has  been 
desirous  of  vindicating  the  laws,  but  which  is  liable  to  be  misled  by 
passion  and  prejudice,  will  now  hail  with  equal  satisfaction  the  vin« 


584  MODERN  JURY  TRIALS. 

dication  of  the  innocence  of  this  prisoner  by  the  verdict  of  twelve 
honest  men  not  swayed  by  passion,  partiality  or  prejudice — I  ask 
you  whether,  upon  this  testimony,  if  I  went  no  farther  in  the  argu- 
ment, you  would  not  be  bound  to  find  a  verdict  of  not  guilty  ? 

I  now  proceed  to  the  discussion  of  the  second  question,  which  I 
have  already  stated  in  the  division  of  my  argument. 

Gentlemen,  the  issues  in  this  case  are  so  momentous,  the  subjects 
necessarily  involved,  and  which  require  discussion  with  a  view  to 
an  intelligent  determination  of  those  issues,  are  so  numerous,  that 
I  do  not  think  you  will  consider  any  apology  necessary  on  my  part 
for  the  length  of  time  that  I  shall  occupy,  when  you  remember  that 
the  words  which  I  speak  to  you  are  the  last  words  that  will  be 
heard  on  earth  in  the  prisoner's  behalfj  before  the  question  shall  be 
determined  whether  the  prisoner  at  the  bar  shall  live  or  die. 
******** 

The  prosecution  must  satisfy  the  jury  that  the  prisoner  at  the 
bar  had  the  murderous,  premeditated  design  to  kill.  "  Premedita- 
ted design  to  kill "  was  changed  last  year  by  adding  to  it  "  delib- 
erate " — "deliberate  and  premeditated  " — but  the  new  law  does  not 
apply  to  old  offenses,  so  that  we  have  two  rules  in  this  state,  one 
applicable  to  Stokes  and  the  other  milder  rule  to  offenses  commit- 
ted after  the  passage  of  the  new  statute.  The  words  "  premeditated 
design  to  kill "  have  been  construed  to  mean  an  instantaneous  pre- 
meditation, although  the  Supreme  Court  in  this  district  struggled 
against  that  interpretation,  and  said  the  word  premeditated  implied 
just  what  the  present  statute  says — deliberation  and  premeditation. 
And  that  I  have  always  believed  was  the  fair  meaning  of  what  the 
legislature  meant  when  they  introduced  this  word  "premeditated.** 
Yet  the  Court  of  Appeals  having  held  otherwise,  we  bow  to  that 
decision.  Stern  and  severe  though  we  may  regard  the  decision,  we 
accept  it,  but  we  demand  that  if  the  prosecution  will  have  the 
pound  of  flesh,  under  this  construction,  no  Christian  blood  shall  be 
drawn. 

We  demand,  if  you  will  apply  the  stern  old  rule  that  has  passed 
away  forever  as  to  future  cases,  to  the  case  of  Stokes,  and  will 
insist  that  the  premeditated  design  may  exist,  although  formed  on 
the  very  instant,  that  you  shall  so  clearly  satisfy  the  jury  that  this 
complete  premeditated  design  existed,  that  there  can  be  no  doubt 
about  it.  And  here  we  see  the  humanity  of  the  law;  which  when 
you  assume  the  attribute  of  Deity  in  a  matter  where  you  may  make 
mistakes,  it  is  not  asking  too  much,  that  you  may  attempt,  so  far 
as  poor  human  nature  will  permit  you  to  do,  to  keep  open  those 
humane  sympathies,  those  tendencies  to  gentleness,  to  charity,  to 


8TOKES-FISK  CASE.  585 

mercy,  that  disposition  that  ought  to  animate  every  generous  heart, 
not  to  seek  for  guilt,  not  to  look  on  the  dark  and  sombre  side  of  the 
picture,  but  on  the  other  hand  to  assume  charity,  mercy,  doubt, 
and  to  give  to  the  prisoner  the  benefit  of  these  humane  conditions 
in  the  criminal  law. 

*  *  *  A  reasonable  doubt  is  the  great  solvent  that  may 
dissolve  the  most  complicated  questions  of  fact.  It  is  the  property 
of  the  prisoner,  more  valuable  to  him  perhaps  now  than  the  mines 
of  Golconda  or  of  California;  more  valuable  than  all  this  world's 
possessions,  for  what  will  a  man  not  give  for  his  life  ?  Not  only 
does  this  presumption  exist,  but  you  are  to  give  him  the  doubt 
which  the  law  declares  his  property  upon  every  branch  of  the  case. 
And  if  it  were  not  for  the  presence  of  these  humane  doctrines,  oh, 
how  liable  would  men  be  to  be  sacrificed  by  mistakes  committed 
honestly  on  the  part  of  the  jury,  when  they  seek  to  penetrate  the 
heart  of  the  prisoner.  You  are  therefore  to  look  into  his  heart. 
You  take  the  place  of  Omniscience;  you  sit  in  judgment,  perform- 
ing the  most  delicate  and  responsible  function  that  can  possibly  be 
entrusted  to  a  human  tribunal;  you  are  to  inquire  whether  the  pros- 
ecution has  proved  in  this  case  the  presence  of  that  murderous  pur- 
pose which  constitutes  the  essential  element  in  the  crime  of  murder, 
and  is  included  in  the  words  of  the  common  law  as  they  existed 
k^fore  the  statute  was  passed,  which  words  were  "  malice  afore- 
thought;" and  the  same  intent  is  necessary  in  order  to  constitute 
the  offense  of  murder  in  the  first  degree,  involving  the  question  of 
a  premeditated  design  to  take  life.  I  said  to  you  that  you  are 
assuming  the  attributes  of  Omniscience.  In  the  sacred  scriptures 
this  attribute  of  the  Deity  is  thus  alluded  to:  "  Who  can  know  it? 
I  the  Lord  search  the  heart,  I  try  the  reins,  even  to  give  every  man 
according  to  his  way,  and  according  to  his  doings."  "  But,  oh, 
Lord  of  Hosts,  that  judgest  righteously,  that  triest  the  reins  and 
the  heart,  let  me  see  Thy  vengeance  on  them;  for  unto  Thee  have  I 
revealed  my  cause."  Oh,  see  to  it,  gentlemen,  that  you  make  no 
mistakes  in  assuming  that  function  which,  when  exercised  by  Him 
who  sees  the  hearts  and  tries  the  reins  of  the  children  of  men,  is 
always  infallible;  and  in  weighing  the  evidence  bearing  upon  the 
question  as  to  the  heart  of  the  prisoner,  am  I  asking  too  much  when 
I  ask  you  to  remember  that  the  same  Deity  who  does  try  the 
hearts  and  the  reins  of  men  is  filled  with  gentleness  and  mercy. 
******* 

I  ask  you,  who  would  have  a  motive  to  kill,  if  the  facts  are  as 
the  learned  district  attorney  assumes  them  to  be  ?  Between  these 
men,  as  I  say,  friendly  relations  had  existed.  They  were  broken 


586  MODERN  JURY  TRIAIA 

up.  The  learned  district  attorney  is  right  in  saying  that  Fisk  was 
jealous.  I  agree  to  it;  it  is  proved  by  Mansfield  and  Williams;  and 
that  a  short  time  before  meeting  these  parties,  Fisk  had  sought  an 
interview  with  the  woman  Mansfield,  and  had  endeavored  to  per- 
suade her  to  resume  her  relations  with  him,  had  asked  her  to  dis- 
continue her  proceedings  at  Bixby's,  when  this  woman,  no  matter 
how  false  she  may  have  been,  of  which  w*  have  no  evidence  what- 
ever— she  has  many  excellent  traits — said  to  him,  "Sir,  unless  you 
will  vindicate  me  against  the  false  charge  contained  in  the  affida- 
vit of  your  hireling — that  colored  boy,  King — I  will  never  discon- 
tinue these  proceedings.  Vindicate  my  character,  and  all  will  be 
withdrawn."  To  which  he  answers  that,  so  far  as  he  was  concerned 
personally,  he  would  have  no  objection;  but  that  there  were  so 
many  persons  involved,  and  so  many  complications,  he  couldn't  do 
it.  And  then,  in  the  course  of  the  interview,  he  declares  that  he 
will  kill  the  monster  Stokes;  he  will  kill  the  man  who,  as  he 
believes,  has  stepped  between  him  and  this  woman.  The  poet  says, 
"  Hell  has  no  passion  so  fierce  as  love  to  hatred  turned."  Fisk  had 
it.  Fisk  was  jealous.  Stokes  was  not  jealous.  Stokes  was 
aggrieved.  Stokes  had  been  persecuted,  ruined  in  character  and 
in  property  by  Fisk;  but,  with  the  exception  of  the  poor  creature, 
Parker,  there  is  no  evidence  that  one  word  of  a  threatening  char- 
acter ever  fell  from  his  lips.  Where,  then,  is  the  motive?  Stokes 
thought  he  had  legal  claims  against  Fisk  to  the  amount  of  hun- 
dreds of  thousands  of  dollars.  He  was  going  from  lawyer  to  law- 
yer to  prosecute  these  claims.  He  thought  that  when  the  agree- 
ment to  pay  him  two  hundred  thousand  dollars  was  broken  up,  and 
under  the  form  of  an  arbitration,  whereby,  in  his  credulity,  he  had 
submitted  to  the  very  lawyers  of  Fisk,  his  case,  that  he  had  been 
swindled,  and  he  thought  he  could  set  aside  the  award.  He  applied 
to  Marsh  and  other  lawyers  to  take  proceedings  to  set  it  aside.  But 
he  thought  he  had  claims  against  him,  and  the  only  way  in  which 
he  could  try  the  question  was  by  having  Fisk's  life  spared.  Kill 
Fisk !  and  he  would  kill  the  goose  that  laid  the  golden  egg.  Kill 
Fisk !  and  there  is  no  more  chance  for  redress  from  these  wrongs 
that  he  believed  he  had  suffered,  that  had  been  brooding  upon  his 
mind  ever  since  his  business  was  broken  up,  by  a  band  of  armed 
ruffians,  his  mother's  inheritance  was  taken  from  him,  and  he  igno- 
miniously  thrown  in  prison,  to  come  out  with  a  tarnished  reputa- 
tion, with  the  facts  of  his  arrest  and  imprisonment  blazoned 
through  the  newspapers;  he,  a  young  man  with  a  college  edu- 
cation, connected  with  some  of  the  most  respectable  people  in 
the  city  of  New  York,  against  whom  the  breath  of  a  suspicion, 


STOKES-FISK  CASE.  537 

np  to  this  time,  had  never  been  known;  branded  as  a  felon,  ruined 
in  pioperty  and  character,  his  standing  in  the  community  impaired, 
with  no  remedy  except  to  resort  to  the  courts  of  law;  and  yet  he 
goes  and  kills  the  only  man  whose  preservation  and  existence  were 
necessary  to  allow  him  to  have  an  opportunity  to  vindicate  him- 
self and  establish  his  legal  rights.  Go  on,  then,  with  me  a  little 
farther,  for  the  absence  of  motive  is  only  one  of  the  pregnant  cir- 
cumstances which  meet  us  at  the  threshold  of  this  investigation. 
He  told  a  hackman,  they  say,  "  Go  to  the  Grand  Central  Hotel." 
If  he  meant  to  go  there  to  waylay  Fisk,  was  it  not  strange  that 
he  should  have  made  this  expression  to  the  very  witness  who,  of 
course,  would  remember  what  he  said  if  that  assassination  should 
take  place  there  ?  If  he  was  going  to  waylay  this  man,  why 
did  he  go  down  to  the  Grand  Central  Hotel  ?  Were  there  not 
abundant  opportunities  to  shoot  him  in  a  less  public  place — where 
Fisk  was  not  among  his  own  personal  friends,  and  where  there 
were  not  so  many  persons  who  would  be  witnesses  to  the  whole 
transaction  ? 

Now,  look  at  the  surrounding  circumstances.  According  to  the 
theory  of  the  prosecution,  this  man  who  had  been  harboring  mur- 
der in  his  heart  for  a  long  time,  instead  of  seeking  some  secret 
place  where  he  could  perpetrate  the  deed,  goes  to  one  of  the  largest 
hotels  in  this  great  city  ;  he  seeks  a  holiday,  as  you  may  say,  Satur- 
day afternoon,  and  there  in  that  place,  swarming  with  guests,  right 
on  Broadway,  where,  on  every  side,  the  popular  currents  pass  and 
repass,  he  takes  occasion  to  shoot  him;  there  is  no  friend  with  him, 
no  lawyer  to  advise  him,  after  the  deed  is  done,  what  to  say,  or 
what  not  to  say;  no  kind,  sympathizing  companion  to  aid  him  by 
counsel  or  by  act;  all  alone,  on  a  Saturday  afternoon,  in  this 
crowded  hotel,  he  takes  occasion  to  perpetrate  a  murder !  How 
was  he  dressed  ?  Dressed  as  a  man  would  be  who  is  lying  in  wait 
for  a  victim  ?  There  are  the  gloves  [exhibiting  them  to  the  jury] 
close  around  his  wrist,  lined  as  any  gentleman  would  be  likely  to 
have  them  in  the  winter  season,  with  that  cloak  upon  him,  long, 
cumbersome,  and  that  little  whip  in  his  hand.  Was  ever  a  mur- 
derer clothed  in  such  attire,  with  such  aids  to  the  perpetration  of 
his  deed  ?  Did  ever  a  murderer,  of  intelligence,  not  belonging  to 
the  lower  strata  of  human  society,  but  a  young  man  of  culture,  of 
high  family  associations,  go,  all  alone,  into  a  place  like  the  Grand 
Central  Hotel,  and  there  perpetrate  a  murder,  with  gloves  on,  and 
a  cloak  on,  and  with  his  little  cane  in  his  hand;  and  the  moment  he 
had  done  it  go  out  and  call  for  a  doctor  ?  This  man,  who  wanted 
*.o  kill  his  enemy,  who  had  been  harboring  these  diabolical  purposes, 


588  MODERN  JURY  TRIALS. 

who  would  refoice  to  know  that  his  purposes  had  been  accom- 
plished, firing  only  two  balls  from  a  revolver  that  had  four;  firing 
one  shot  in  the  abdomen,  not  in  the  heart  or  head,  another  in  the 
arm,  penetrating  near  the  elbow,  and  then  escaping,  not  with  the 
cool  deliberation  of  the  murderer,  but  attracting  attention  by  the 
bewilderment,  excitement  and  paleness  that  he  displays,  dropping 
his  pistol  in  his  flight — a  fact  clearly  proved,  notwithstanding  the 
testimony  of  Tommy  Hart  that  he  first  put  his  pistol  under  his  left 
arm,  and  then  brought  it  as  if  putting  it  in  his  pocket.  I  will  ask 
you,  by  and  by,  when  I  review  Tommy  Hart's  testimony,  to  tell 
me  what  had  become  of  the  pistol,  if  it  was  dropped  in  his  pocket, 
as  he  pretends,  when  the  men  down  stairs  searched  him  thoroughly, 
and  found  no  pistol  there.  This  prisoner,  under  these  circum- 
stances, comes  down  the  steps,  in  the  language  of  Bligh,  a  most 
reputable  witness,  residing  in  Rome,  who  has  appeared  for  the  first 
time  on  this  trial,  and  has  his  attention  called  to  him,  and  when  he 
saw  him  he  "thought  it  was  a  lunatic  coming;  he  seemed  like  a 
madman,  all  pale,  bewildered  and  excited."  He  was  seized  in  that 
condition.  All  concede,  who  are  entitled  to  be  believed,  that  he 
called  for  a  doctor;  the  witnesses  for  the  prosecution  prove  it; 
Tommy  Hart  didn't  hear  it ;  Tommy  Hart  heard  nothing  that 
would  benefit  us;  but  you  hear  it  through  the  mouths  of  the  wit- 
nesses as  plain  as  if  you  had  heard  him  utter  it  on  that  afternoon. 

******** 
He  passes  down,  looks  into  the  reading-room,  he  had  never  been 
on  the  second  floor  of  this  new  hotel,  that  had  been  so  eulogized  in 
the  newspapers;  looks  around  at  the  hotel,  goes  down  the  dining- 
room  hall,  looks  into  this  parlor;  turns  around,  passes  out  with  this 
pistol  in  his  pocket,  that  he  had  procured  six  months  before;  he 
tells  you  when  and  where  he  procured  it,  and  there  is  no  breath  of 
contradiction;  tells  you  he  had  procured  it  for  the  purpose  of  self- 
defense  against  the  enemy  that  he  believed  sought  his  life,  and  no 
more  anticipating  that  he  would  meet  James  Fisk  than  that  he 
would  meet  the  prince  of  the  infernal  regions  himself,  marches  into 
that  private  entrance;  it  is  dark;  several  witnesses  say  it  was  dark 
down  there;  the  light  had  not  been  lit;  a  man  enters;  he  does  not 
recognize  him;  he  passes  on  about  his  business;  he  goes  down  two 
or  three  steps;  this  man  comes  up  rapidly;  he  touches  the  broad 
landing;  he  begins  to  ascend  the  staircase,  and  then,  for  the  first 
time,  as  suddenly  as  if  a  ghost  had  risen  from  the  grave,  he  dis* 
covers  the  apparition  of  this  man  who  had  been  threatening  hia 
life;  this  man  whose  emissaries  had  been  dogging  his  track  for 
many  months;  this  man  who  held  supreme  power  in  this  city.  And 


STOKES-FISK  CASE.  589 

when  you  tell  me  that  Stokes  should  go  to  the  courts  of  law  to  seek 
redress  from  him,  oh  !  what  a  mockery  it  is,  when  Fisk  boasts  that 
he  can  railroad  his  enemies  to  prison;  when  he  boasts  that  his 
touch  is  the  touch  of  the  grave;  that  the  men  who  cross  his  path 
will  feel  the  cold  and  clammy  touch  upon  them,  as  in  the  Dorman 
B.  Eaton  case,  that  had  attracted  the  indignation  of  this  city,  and 
of  the  world,  who  was  stricken  down  after  he  had  ceased  to  be  the 
counsel  for  Fisk  and  the  Erie  Railroad,  and  had  dared,  as  an  hon- 
orable lawyer,  to  espouse  the  other  side;  stricken  down  at  midnight 
by  the  blow  of  the  assassin,  his  constitution  ruined  by  a  deadly 
blow  aimed  at  his  head,  when  about  entering  his  own  house,  and 
the  prisoner  had  learned  that  he  was  to  be  treated  by  this  man  in 
the  same  way.  This  apparition  appears  before  him;  and  what 
does  he  do  ?  He  instantly  springs  to  the  other  side,  so  as  to  get 
out  of  his  range,  and  without  regard  now  to  the  question  of  Fisk 
drawing  the  pistol,  to  which  I  shall  call  your  attention  more  spe- 
cifically and  minutely  under  another  branch  in  the  case,  fires  in  an 
instant;  fires  twice;  turns  around  to  this  passage-way  into  that 
room,  on  the  opposite  side  of  the  entrance  that  leads  down  stairs; 
stops  for  a  moment  on  the  threshold;  is  seen  to  make  a  motion  with 
his  hand,  where  undoubtedly  the  pistol  was  dropped;  passes  along; 
meets  this  man  Hill;  Hill  says,  "What's  up?"  He  says,  "  Go ! 
there  is  a  man  shot,"  attracting  attention,  of  course,  to  himself;  all 
excited,  as  Hill  says,  passes  on  down  the  dining-room  hall,  down 
the  stairs  repeating  the  alarm,  "A  man  shot;  go  and  get  a  doctor;" 
excited,  bewildered,  crazed;  the  deed  has  culminated;  these  diffi- 
culties on  the  part  of  the  enemy  who  had  sought  his  life,  the 
enemy  who  had  ruined  him,  the  enemy  in  whose  hands  he  was  as 
powerless  as  the  fly  in  the  spider's  web;  this  man  appears  before 
him  at  a  moment  when  he  thought  he  might  innocently  take  a  little 
recreation  on  Saturday  afternoon,  and  that  he  might  be  relieved 
from  the  presence  of  that  vision  that  had  haunted  him,  that  had 
been  brooding  upon  his  mind,  until,  in  the  beautiful  language  of 
Lord  Erskine,  in  vindicating  the  modern  doctrine  of  insanity  as  an 
excuse  for  crime,  "  Delusion  had  taken  its  seat  side  by  side  on  the 
throne  with  reason,  and  brooded  over,  and  discolored  every  thought 
and  emotion  of  his  heart." 

And  now,  gentlemen,  after  a  practice  of  more  than  thirty  years 
at  the  bar,  although  I  assure  you  that  this  is  the  last  criminal  case, 
where  a  life  is  involved,  in  which  I  am  likely  to  appear  as  counsel 
for  the  defendant,  for  the  draft  is  too  great  upon  my  physical  and 
emotional  nature — after  an  experience  as  counsel  for  the  govern- 
ment, in  official  positions,  or  as  counsel  for  the  prisoner,  I  have 


590  MODERN  JURY  TRIALS. 

been  engaged  in  between  thirty  and  forty  capital  cases,  I  have 
never  known  a  story  so  completely  corroborated,  from  one  end  to 
the  other,  as  the  story  of  Edward  S.  Stokes.  All  along,  from  the 
time  he  came  from  Bixby's  Court  until  that  fatal  hour  when  the 
parties  met  in  that  private  entrance,  there  seems  to  be  a  pathway 
of  intelligence  and  of  light,  sustaining  his  statement  and  con- 
firming our  theory  of  the  case.  It  is  sustained  by  Andrews, 
by  Bixby,  by  the  clerk,  by  Doty,  by  the  telegraph  operator  Coles, 
by  Cotterell,  the  lawyer  who  was  present,  by  McLoflin,  who  met 
him  at  the  Hoffman  House,  where  he  was  boarding,  who  had  been 
assisting  in  preparing  his  case,  and  who  told  him  where  other  wit- 
nesses could  be  found. 

The  law  of  self-defense  has  existed  in  all  countries  and  among 
all  nations,  and  is  recorded  in  every  criminal  code  that  has  been 
ever  promulgated  among  civilized  nations.  It  had  its  origin  and 
was  proclaimed,  before  the  advent  of  our  Saviour,  in  old  Rome, 
from  whence  the  civil  law  emenated  that  has  been  adopted  by  all 
the  nations  of  continental  Europe.  It  was  adopted  at  an  early 
period  in  Great  Britain,  as  part  of  the  common  law,  and  was 
brought  to  this  country  by  our  ancestors.  It  is  a  law  above  all 
human  laws  ;  it  is  a  law  which  an  all-wise  and  all-merciful  Crea- 
tor has  implanted  in  every  human  heart  along  with  those  instincts 
that  are  common  to  the  animal  creation,  intelligent  and  unintelli- 
gent. Human  laws  cannot  ignore  it  nor  obliterate  it.  It  is  a  law 
that  is  implanted  in  the  animal  creation  from  the  highest  to 
the  lowest.  The  lordly  elephant  as  he  roams  through  the 
forests  of  Africa,  when  pursued  by  his  hunters  and  driven  to 
bay  will  turn  and  fight  his  pursuers  ;  the  vilest  worm  that  crawls 
in  the  dust  will  turn  and  bite  the  heel  which  presses  it  down  and 
crushes  out  its  life. 

I  have  alluded  to  the  law  of  Home.  I  hold  in  my  hand  a  most 
masterly  vindication  of  this  law  of  self-defense,  proclaimed  by  one 
of  the  greatest  orators  of  ancient  times,  the  learned  Cicero,  who 
was  familiar  with  the  laws  of  Rome  when  Rome  was  mistress  of 
the  world.  He  lived  before  the  advent  of  our  Saviour  ;  and  more 
than  a  hundred  years  before  the  birth  of  Christ,  in  one  of  those 
masterly  orations  that  have  been  handed  down  to  posterity,  and 
that  will  live  wherever  oratory  is  recognized,  he  thus  vindicates 
and  justifies,  in  language  better  than  any  I  could  employ,  and 
which  I  desire  to  adopt,  this  great  law  of  self-defense.  Two 
Roman  noblemen  who  were  candidates  for  high  offices  in  the  Repub- 
lic, and  who  were  bitter  enemies,  were  brought  into  collision,  and 
the  one,  Titus  Annius  Milo,  slew  the  other,  Publius  Clodius,  whil« 


STOKES-FISK  CASE.  591 

Clodius  was  a  candidate  for  the  office  of  Praetor,  the  highest  office 
in  Rome — Milo  was  brought  to  trial  before  the  Roman  senate 
when  Pompey  was  Praetor — Pompey  was  a  friend  of  Clodius. 
Pompey  had  ordered  passed  a  special  law  directing  an  investigation 
into  this  case  by  the  senate,  and  Cicero  alludes  to  that  fact  in  his 
address.  Cicero  found  that  Pompey  had  surrounded  the  senate 
chamber  with  armed  retainers  ;  although  the  pretense  was,  they 
were  there  to  preserve  the  peace,  Cicero  knew  they  were  there  to 
overawe  the  senate.  The  circumstances  of  this  homicide  are  thus 
forcibly  stated  by  the  historian  in  the  preface  to  the  argument : 

"Titus  Annius  Milo,  often  in  the  following  speech  called  only 
Titus  Annius,  stood  for  the  consulship  while  Clodius  was  a  candi- 
date for  the  praetorship,  and  daily  quarrels  took  place  in  the  streets 
between  their  armed  retainers  and  gladiators.  Milo,  who  was 
dictator  of  Lanuvium,  his  native  place,  was  forced  to  go  thither 
to  appoint  some  priests,  etc.;  and  Clodius,  who  had  been  to  Arica, 
met  him  on  his  road.  Milo  was  in  his  carriage  with  his  wife,  and 
was  accompanied  by  a  numerous  retinue,  among  whom  were  some 
gladiators.  Clodius  was  on  horseback,  with  about  thirty  armed 
men.  The  followers  of  each  began  to  fight,  and  when  the  tumult 
had  become  general,  Clodius  was  slain,  probably  by  Milo  himself." 

Cicero,  the  greatest  orator  of  Rome,  presents  this  doctrine  of 
self-defense,  and  pronounces  this  beautiful  vindication  of  that 
law  : 

"This,  therefore,  is  a  law,  O  judges,  not  written,  but  born  with 
us — which  we  have  not  learnt,  or  received  by  tradition,  or  read, 
but  which  we  have  taken  and  sucked  in  and  imbibed  from  nature 
herself  ;  a  law  which  we  were  not  taught,  but  to  which  we  were 
made — which  we  were  not  trained  in,  but  which  is  ingrained  in 
us — namely  that  if  our  life  be  in  danger  from  plots,  or  from  open 
violence,  or  from  the  weapons  of  robbers  or  enemies,  every  means 
of  securing  our  safety  is  honorable.  For  laws  are  silent  when 
arms  are  raised,  and  do  not  expect  themselves  to  be  waited  for, 
when  he  who  waits  will  have  to  suffer  an  undeserved  penalty 
before  he  can  exact  a  merited  punishment." 

******** 

"But  if  both  reason  has  taught  this  lesson  to  learned  men,  and 
necessity  to  barbarians,  and  custom  to  all  nations,  and  nature  itself 
to  the  beasts,  that  they  are  at  all  times  to  repel  all  violence  by 
whatever  means  they  can  from  their  persons,  from  their  liberties, 
and  from  their  lives,  then  you  cannot  decide  this  action  to  have 
been  wrong,  without  deciding  at  the  same  time  that  all  men  who 


592  MODERN  JURY  TRIALS. 

fall  among  thieves  must  perish,  either  by  weapons,  or  by  your 
sentence." 

And  that  is  the  condition  of  the  prisoner  at  the  bar  ;  he  was,  if 
the  facts  be  as  I  shall  endeavor  to  establish  them,  in  the  peril  of  a 
man  who  must  fall  a  victim  before  Fisk  or  his  myrmidons,  or,  if 
he  rescue  himself  from  that  danger,  he  must  perish  iguominiously 
upon  the  scaffold  by  your  verdict. 

Cicero  then  portrays  another  portion  of  the  case,  quite  similar 
to  ours,  and  shows  how  this  Clodius,  like  the  deceased,  was  a  man 
who  was  so  obnoxious  and  had  so  debauched  the  youth  of  Rome 
that  that  circumstance  was  proper  to  be  taken  into  consideration 
in  connection  with  the  defense  of  justifiable  homicide,  and  that 
the  prisoner  instead  of  being  punished  ought  to  have  honor,  in 
this  language : 

"If  Censeus  Pompeius  himself,  who  is  a  man  of  such  virtue  and 
such  good  fortune  that  he  has  at  all  times  been  able  to  do  things 
which  no  one  except  him  ever  could  have  done  —  if  even  he,  I 
say,  had  been  able,  in  the  same  manner  as  he  has  ordered  an 
investigation  into  the  death  of  Publius  Clodius  to  take  place,  so 
also  to  raise  him  from  the  dead,  which  do  you  think  he  would 
have  preferred  to  do?  Even  if  out  of  friendship  he  had  been 
willing  to  raise  him  from  the  shades  below — "  (for  the  Christian 
religion  had  not  then  brought  its  blessed  revelations  to  mankind) — 
"  out  of  regard  for  the  republic  he  would  not  have  done  it.  You, 
then,  are  sitting  now  as  avengers  of  the  death  of  that  man 
whom  you  would  not  restore  to  life  if  you  thought  it  possible 
that  his  life  could  be  restored  by  you.  And  this  investigation 
is  appointed  to  be  made  into  the  death  of  a  man  who  would 
never  have  seen  such  a  law  passed,  if  the  law  which  ordered  the 
inquiry  had  been  able  to  restore  him  to  life.  Ought,  then,  the 
slayer  of  this  man,  if  any  such  slayer  there  be,  to  have  any  reason, 
while  confessing  the  deed,  to  fear  punishment  at  the  hands  of  those 
men  whom  he  delivered  by  the  deed  ? 

"  Grecian  nations  give  the  honors  of  the  gods  to  those  men  who 
have  slain  tyrants.  What  have  I  not  seen  at  Athens  !  What  in 
the  other  cities  of  Greece  ?  What  divine  honors  have  I  not  seen 
paid  to  such  men  !  What  odes,  what  songs  have  I  not  heard  in 
their  praise  !  They  are  almost  consecrated  to  immortality  in  the 
memories  and  worship  of  men  !  And  will  you  not  only  abstain 
from  conferring  any  honors  on  the  savior  of  so  great  a  people,  and 
the  avenger  of  such  enormous  wickedness,  but  will  you  even 
allow  him  to  be  borne  off  for  punishmt-nt  ?" 

la  England,   Blackstone,  the  great  commentator  upon  English 


8TOKES-FISK  CASE.  593 

law,  and  a  writer  upon  the  common  law  which  our  ancestors  brought 
rritn  them  to  this  country,  and  which,  as  I  have  already  said,  has 
been  incorporated  into  every  one  of  our  three  state  constitutions, 
beginning  with  the  constitution  adopted  immediately  after  the 
Lteclaration  of  Independence — thus  lays  down  this  law  of  self- 
defense  ;  and  Blackstone,  as  you  all  know,  although  you  are  not 
lawyers,  is  the  very  first  book  put  into  the  hand  of  a  student  in  a 
law  office. 

"  For  the  law  in  this  case  (self-defense),  respects  the  passions  of 
the  human  mind,  and  (after  external  violence  is  offered  to  him)^ 
makes  it  lawful  in  him  to  do  himself  that  immediate  justice  to 
which  he  is  prompted  by  nature,  and  which  no  prudential  motive* 
are  strong  enough  to  restrain.  *  *  * 

"  Self-defense,  therefore,  as  it  is  justly  called,  is  the  primary 
law  of  nature,  so  it  is  not,  neither  can  it  be  in  fact,  taken  away  by 
the  law  of  society.  In  the  English  law,  particularly,  it  is  held  an 
excuse,  even  for  homicide  itself.  (3  Blackstone,  p.  4.) 

"  Self-defense  is  that  condition  whereby  a  man  may  protect  him- 
self from  an  assault,  or  the  like,  in  the  course  of  a  sudden  broil  or 
quarrel,  by  killing  him  who  assaults  him. 

"  The  party  assailed  must  therefore  flee  as  far  as  he  conveniently 
can,  or  as  far  as  the  fierceness  of  the  assault  will  permit  him,  for  it 
may  be  so  fierce  as  not  to  allow  him  to  yield  a  step  without  mani- 
fest danger  of  his  life  or  enormous  bodily  harm,  and  then  in 
defense  he  may  kill  his  assailant  instantly.  And  this  is  the  doc- 
trine of  universal  justice,  as  well  as  of  the  municipal  law." 

I  ask  again:  How  did  the  character  of  Fisk  reveal  itself  to  the 
mind  of  my  client  ?  For  you  will  remember  that  the  authorities 
that  were  read  in  your  presence,  declare  that  the  jury  are  not  to 
judge  as  they  would  judge  of  a  party  in  the  clear  light  of  subse- 
quent developments;  but  as  this  man  was  obliged  to  judge  on  the 
instant  or  perish,  as  he  supposed,  in  the  light  of  his  apprehensions 
and  fears,  as  they  existed  in  the  mind  of  this  young  man  when  he 
met  Fisk — a  young  man  against  whom  not  one  syllable  of  reproach, 
so  far  as  we  can  learn,  had  ever  been  uttered  before  he  formed  this 
unfortunate  and  melancholy  association  with  Fisk,  upon  the  solici- 
tation of  Fisk  himself,  which  has  resulted  in  all  this  woe,  all  this 
peril  to  the  prisoner — he  was  the  man  who  made  the  attack  upon 
Eaton,  and  who  threatened  to  serve  the  prisoner  the  same  way. 
To  Edward  S.  Stokes  he  was  the  man  who  had  told  him  his  touch 
was  cold. and  clammy,  and  there  were  graveyards  for  those  who 
crossed  his  path;  and  to  Stokes  he  repeated  this  conversation  before 
the  shooting  took  place.  To  Edward  S.  Stokes  he  was  the  man 
88 


594  MODERN  JURY  TRIALS. 

who  held  possession  of  the  court  where  Recorder  Hackett 
and  others,  through  which  he  threatened  to  railroad  him  to  state 
prison.     He  was  the  man  who  was  received  with  open  arms  with 
those  associates  who  were  proved  to  have  been  his  witnesses  whec 
he  came  to  the  Grand  Jury  room.     Stokes  desires  to  get  rid  of 
some  injunction  order,  the  nature  of  which,  doubtless  for  pruden- 
tial reasons,  the  prosecution  has  not  put  in  evidence;  but  he  is  met 
by  an  affidavit  sworn  to  by  a  colored  boy  named  King,  and  he  if 
defeated.      King    having  been  used  by  Fisk,    like   a  squeezed 
orange,  is  thrown  away  and  flees  the  country.     To  the  prisoner's 
mind  Fisk  was  a  man  so  destitute  of  moral  sense,  that  he  would 
not  hesitate  to  organize  murder  !    He  is  a  high  naval  and  military 
officer;  he  rejoices  in  an  admiral's  uniform,  and  rides  in  Broadway 
at  the  head  of  a  regiment  with  a  thousand  muskets  behind  him;  he 
is  a  friend  and  co-director  with  Tweed,  Gould  &  Co.     Legislation 
is  run  in  their  interest.     The  Classification  Act  perpetuates  in  power 
the  men  who  had  stolen  possession  of  the  road.     He  runs  the  Erie 
Railroad  with  its  hundred  millions  of  capital,  its  extensive  tributaries 
and  its  army  of  retainers.     With  one  wife  in  Boston,  as  his  will 
would  indicate,  he  keeps  a  mistress  openly  and  flaunts  his  licen- 
tiousness in  the  heart  of  this  Christian  city.     Private  secretaries 
attend  him,  as  if  he  was  an  Oriental  prince.     Like  the  Roman  Cen- 
turion, he  says  to  one,  "  Go,"  and  he  goes,  and  to  another, "  Come," 
and  he  comes.     Princely  wardrobes  attest  his  resources,  including 
pantaloons  with  pistol  pockets  and  without,  according  to  the  neces- 
sities of  the  case  and  the  exigency  that  surrounds  him.     Africans 
and  Belgians  wait  upon  him  in  his  bedchamber,  assist  him  to  put 
on  his  wardrobe,  and  stand,  ready  to  obey  his  orders.     Colored 
servants,  clad  in  livery,  drive  his  costly  carriage,  as  he  rolls  in 
splendor  through  the  streets.     On  great  state  occasions,  like  Black 
Friday,  or  during  the  raid  on  the  Susquehanna  Railroad,  or  when 
he  is  under  the  necessity  of  leaving  the  state  temporarily  and  liv- 
ing in  New  Jersey,  he  takes   his   mistress  with  him.     He   rolls 
through  the  streets  with  gilded  harlots  by  his  side,  and  the  district 
attorney  thinks  it  is  very  strange  that  Stokes  should  know  any  of 
these  creatures.     I  think  he  ought  to  make  an  apology  to  Stokes. 
When  I  was  spending  a  winter  in  Florence  I  saw  every  afternoon 
two  carriages  that  were  well  known  in  Florence  as  the  carriages  of 
the  mistresses  of  Victor  Emmanuel,  King  of  Italy.     Everybody 
knew  them;  but  the  King  of  Italy  never  rode  side  by  side  with 
them  on  the  Casino,  nor  through  the  streets  of  Florence,  and  if 
brother  Phelps  had  come  there  and  had  told  me  he  had  seen  the 
king's  mistresses  on  the  Casino  that  afternoon,   and  I  had   said, 


STOKES-FISK  CASE.  595 

"  Ah,  brother  Phelps,  how  did  you  know  they  were  the  king's  mis- 
tresses?" the  response  would  come,  "Why  I  know  it,  because 
everybody  in  Florence  knows  it ;"  when  of  course  his  vindication 
would  be  complete. 

To  the  mental  vision  of  Edward  S.  Stokes,  he  was  a  man  who 
had  turned  him  out  by  force  from  the  property  which  his  mother 
owned;  the  oil  refinery  was  carried  on  by  him,  he  receiving  fiity 
per  cent  of  the  profits;  entrusted  by  that  mother  with  the  enure 
management  of  her  business,  and  in  a  night  after  a  claim  had  been 
made  that  those  improvements,  amounting  up  to  $100,000,  which 
he  was  to  make  for  Stokes,  and  let  him  in,  and  give  him  twenty 
per  cent  of  his  income,  and,  under  the  advice  of  Mr.  Beach,  that 
mother  and  this  agent  took  possession.  On  Monday  morning  the 
myrmidons  of  Fisk  are  found  there;  the  prisoner's  business  is 
broken  up,  and  almost  at  the  same  instant  he  is  thrown  into 
prison,  robbed  of  his  property,  and  Fisk  boasted  that  he  had 
robbed  him  of  his  property,  and  that  he  would  wipe  him  from 
the  face  of  the  earth;  a  most  terrific  expression  of  vengeance  on 
his  part. 

To  the  prisoner's  mind  he  was  the  man  who  runs  the  machinery 
of  the  courts;  to  the  prisoner  he  was  the  man  who  after  having 
agreed  to  give  him  $200,000  for  a  settlement,  omitted  to  perform 
the  contract,  under  the  allegation  that  the  agent  of  the  company 
was  afraid,  and  afterward,  upon  another  pretense,  broke  it  up;  and 
finally,  he  was  the  man  who  in  the  mental  vision  of  the  prisoner 
was  the  perpetrator  of  rank  injustice  toward  him,  because  by  arti- 
fices and  frauds,  under  the  form  of  an  arbitration  award,  the  men 
had  sold  him  out  who  were  in  the  interest  of  Fisk,  and  had  given 
him  a  small  sum  by  the  award,  whereupon  he  goes  around  the  city 
with  the  certificates  or  checks  for  the  amount,  refusing  to  accept 
them,  and  proclaiming  everywhere  the  great  wrongs  he  had  suffered 
at  the  hands  of  this  Fisk.  Fisk,  in  the  meanwhile,  is  seated  in  his 
royal  castle  in  the  very  heart  of  New  York;  Fisk  issues  his  orders 
like  an  oriental  king;  Fisk  is  the  man  who  brings  ruin  and  com- 
mercial distress  upon  the  interests  of  the  business  and  the  commer- 
cial relations  of  the  people,  and  then  treats  it  as  the  merest  joke  in 
the  world. 

This,  gentlemen,  is  but  a  feeble  and  imperfect  portrait,  which  we 
are  enabled  to  draw  from  the  evidence  produced  in  this  case,  of  the 
character  of  a  man  of  whom  the  like  has  never  been  seen  since  the 
days  when  the  Roman  patricians  corrupted  the  youth  of  Rome,  and 
were  guilty  of  acts  kindred  in  character  to  those  that  characterized 
the  conduct  of  James  Fisk. 


596  MODERN  JUBT  TBIALS 

On  the  other  hand,  Stokes  comes  before  you  for  his  portrait 
Stokes  knew  that  Fisk  was  jealous  of  him,  Mid  from  being  his 
friend,  he  had  become  his  mortal  enemy.  And  who  was  Stokes  ? 
His  training  and  associates  were  sucb  as  would  not  be  naturally 
calculated  to  inspire  you  with  the  belief  that  he  was  corrupt/  Here 
sits  his  old  father  by  his  side;  there  sits  his  mother;  she  for  her 
oldest  son  has  borne  the  pains  of  maternity;  she  has  dandled  him 
upon  her  knee;  no  doubt  she  has  taught  him  to  utter  with  his  infant 
lips  the  Lord's  Prayer;  and  she  believed  she  could  rely  upon  him, 
her  eldest  son,  to  sustain  and  support  herself  and  her  aged  her  hus- 
band in  the  declining  walks  of  life.  She  came  with  that  son  to  this 
city,  so  attractive  to  the  educated,  enterprising  and  cultured  youth 
of  our  land.  He  came  here  from  college,  and  then  Fisk  marked 
him  for  his  victim.  Fisk  sent  for  him  to  come  down,  when  their 
business  associations  were  formed.  It  was  by  the  agent  of  Fisk 
that  the  woman  Mansfield  was  introduced  to  the  prisoner,  after 
which  event,  unfortunately,  the  jealousy  of  Fisk  was  aroused 
toward  the  prisoner,  and  then  came  that  system  of  persecution 
which  has  been  but  partially  revealed  in  this  case,  yet  which 
exhibits  a  picture  of  oppression  and  wrong  on  the  part  of  Fisk 
toward  the  prisoner  at  the  bar  which,  for  the  honor  of  my  state  and 
the  honor  of  your  great  city,  I  think  is  without  a  parallel  in  the 
history  of  criminal  cases.  Contracts  are  disregarded,  the  refinery 
broken  into,  the  business  of  the  prisoner  destroyed,  he  thrown  info 
prison,  a  false  villain  found  to  swear  falsely  against  him  in  ar 
affidavit,  when  he  seeks  to  go  to  court;  the  prisoner  begs  to  be 
heard  by  the  Grand  Jury,  and  his  prayer  is  peremptorily  denied 
him;  he  supposes  he  has  claims  at  law  against  Fisk,  and  seeks  legal 
redress  to  set  aside  the  award,  and  to  have  an  assertion  of  his 
rights;  he  believes  he  has  a  just  claim  against  him,  which,  of 
course,  would  be  lost  and  defeated  the  moment  Fisk  dies;  then, 
on  the  sixth  of  January,  his  trial  before  Judge  Bixby,  or  her  trial, 
in  which  he  was  interested,  although  not  a  nominal  party,  she 
being  the  complainant,  comes  off;  he  then  proceeds  innocently  to 
prepare  for  the  approaching  trial  at  Providence  on  the  ninth  of 
January;  then  followed  the  unexpected,  the  casual,  and  the  acci- 
dental meeting  between  these  parties  to  which  I  have  already  called 
your  attention. 

But  they  say  the  prisoner's  story  varies  from  his  evidence  on  the 
other  trial ;  because  the  prisoner  there  omitted  to  state  that  his 
expression  was,  "  Don't  shoot."  Now,  I  say  that  this  trifling  dis- 
crepancy in  the  story  of  Stokes,  as  told  on  the  second  trial  and  on 
the  third  trial,  is  in  itself  a  strong  evidence  of  the  truthfulness  of 


8TOKES-FISK  CASE.  597 

his  statement.  The  stories  are  substantially  identical  ;  they  are 
merely  two  accounts  of  the  same  transaction,  of  course  varying 
in  the  particular  phraseology  and  some  of  the  incidents,  but  the 
material  incidents  and  facts  and  the  fair  import  of  the  two  being 
the  same,  they  convey  but  one  idea  of  the  transaction  to  an  impar- 
tial hearer.  I  am  surprised  to  find  that  it  is  not  in  the  reporter's 
notes,  and  I  am  free  to  say,  I  have  attended  these  three  trials,  and 
if  it  was  omitted  by  Stokes  in  telling  the  story  on  the  second 
trial,  it  is  as  much  my  fault  as  his.  Do  you  believe  I  would  have 
failed  to  call  it  out  if  I  had  noticed  the  omission  ?  and  if  the  coun- 
sel on  the  other  side,  shrewd  and  ingenious,  Messrs.  Beach  and 
Fullerton,  who  were  associated  with  the  district  attorney,  two  of 
the  ablest  and  keenest  lawyers  at  the  bar,  had  discovered  that  there 
was  that  omission,  they  would,  of  course,  avoid  asking  about  it  on 
the  cross-examination,  and  would  steal  around  it.  Yet  you  have 
the  fact  that  the  prisoner  in  this  case  told  that  story  on  the  first 
trial,  and  the  same  counsel  appeared  here  then  that  appeared  on 
the  first  trial.  If  you  are  satisfied  that  he  did  not  tell  it,  it  only 
shows  how  apt  we  are  to  omit  some  little  incident,  or  to  forget  to 
call  the  attention  of  the  witness  to  it,  which  we  certainly  would 
have  done  if  we  had  supposed  it  was  omitted.  We  had  every  rea- 
lon  to  suppose  he  testified  the  same  way  as  before,  because  they 
made  no  point  of  it  on  the  other  side  ;  they  didn't  call  the  atten- 
tion of  anybody  to  it,  that  it  varied  from  his  testimony  on  the  first 
trial.  We  have  shown  you  that  he  did  testify  to  it  on  the  first 
trial,  and,  according  to  the  second  reporter  who  took  that  portion 
of  the  testimony,  they  omitted  to  ask  him  whether  any  such 
expression  was  used,  and  it  would  be  a  most  extraordinary  mode  of 
setting  aside  the  evidence  of  a  witness,  not  because  he  had  sworn 
that  such  a  thing  didn't  take  place,  but  that  in  the  examination  of 
two  days,  he  had  omitted  to  state  one  particular  feature  of  the 
transaction. 

Now,  I  have  finished  this  branch  of  the  case,  and  I  submit  to  you 
that  the  prisoner  stands  justified  by  the  laws  of  God  and  of  man  ; 
I  submit  to  you  that  the  testimony  of  the  prisoner  is  not  to  be 
rejected  ;  and  I  submit  to  you  further,  that  if  the  prisoner  saw  a 
pistol  drawn  upon  him,  and  Fisk  was  in  the  act  of  firing  it,  he  was 
not  obliged  to  run  up  these  stairs  and  run  a  distance  around  the 
corner  of  about  eight  feet  before  he  would  be  free  from  danger, 
because  he  would  be  certain,  in  all  human  probability  of  being 
shot  in  the  back  ;  and  in  that  case,  I  submit,  it  comes  within  the 
principle  which  I  have  read  from  Blackstone,  before  pistol  balls 
were  so  common,  that  if  the  attack  was  so  fierce  that  the  party 


698  MODERN  JURY  TRIALS. 

could  not  escape  without  imminent  peril,  he  had  a  right  to  turn 
and  slay  his  assailant. 

Now,  I  come  to  the  fourth  and  last  question,  which  will  be  very 
briefly  discussed.  I  claim  that  the  prisoner — if  you  shall  come  to 
the  conclusion  that  there  was  no  other  pistol,  and  he  had  no  good 
reason  to  believe  there  was  one — was  insane  on  that  subject  and 
in  regard  to  Fisk.  I  claim  that  he  was  a  monomaniac  as  regards 
Fisk.  I  maintain  that  he  was  laboring  under  a  delusion  as  to  the 
purposes  and  intentions  of  Fisk — those  intentions  as  they  are 
revealed  and  have  been  referred  to  under  the  third  branch  of  our 
defense.  I  was  reluctant  to  present  this  branch  of  the  defense, 
because  I  know  with  what  distrust  the  defense  of  insanity  is 
regarded  by  a  jury  ;  but  I  was  anxious  to  get  in  all  the  expres- 
sions of  fears  that  had  been  used  by  the  prisoner,  and  his  honor 
said  they  could  only  come  in  under  that  branch  of  the  defense.  I 
believe,  in  this  case,  that  if  you  find  there  was  a  second  pistol,  it 
will  be  entirely  unnecessary  to  consider  this  question  ;  because  I 
ihink  you  will  say  he  was  justified.  It  is  only  in  the  discharge  of 
my  solemn  and  responsible  duty  here,  believing  that  this  man's 
mind  may  have  been  in  that  state  of  nervous  apprehension,  that,  if 
he  had  not  absolutely  passed  the  border  line  between  sanity  and 
insanity,  he  was  so  near  it  that  it  is  difficult  for  human  tribunals  to 
decide  on  which  side  of  the  line  the  prisoner  stood,  that  I  call  your 
attention  to  this  defense.  I  believe,  upon  the  evidence  in  this 
case,  it  will  be  your  judgment  that  it  was  my  duty  to  present  to 
yon  the  evidence  bearing  upon  this  subject.  Now,  what  is  the  law 
in  regard  to  insanity?  His  honor  will  instruct  you  that  the  revised 
statutes  of  New  York  declare  in  so  many  words,  "  No  man  shall 
be  punished  for  an  act  committed  in  a  state  of  insanity."  What 
constitutes  insanity  ?  I  shall  not  enter  upon  that  most  interesting 
field  of  medical  and  legal  jurisprudence ;  the  medical  profession 
has  published  and  written  more  and  lectured  more  as  to  what  con- 
stitutes insanity,  within  the  last  quarter  of  a  century,  than  upon 
any  other  branch  of  medical  jurisprudence.  I  do  not  deem  it 
necessary  to  adopt  any  of  the  theories  of  these  doctors,  who,  as  I 
believe,  are  more  abused  than  they  deserve  to  be  when  they  are 
called  "  mad  doctors."  My  experience  has  taught  me  that  there 
these  secret,  these  occult  movements  of  the  human  mind,  evincing 
to  the  practiced  eye  the  presence  of  delusion  and  insanity  which 
the  public  at  large  are  not  prepared  to  accept. 

I  shall  ever  regard  it  as  one  of  tbe  proudest  incidents  of  my  pro- 
fessional life,  that  in  the  case  of  McCann.  which  stands  reported  in 
the  Court  of  Appeals,  where  a  poor  Irish  cart  man,  McCann,  having 


STOKES-FISK  CASE.  599 

formed  an  unfortunate  matrimonial  alliance  in  Albany,  became 
intemperate,  had  a  drunken  debauch,  with  his  keg  of  rum  by  his 
side,  having  lost  his  horse  and  cart,  and  finally,  in  a  moment  of 
delirium,  the  insanity  which  follows  delirium  tremens,  chopped  his 
wife  all  in  pieces,  first  with  an  axe  and  then  with  a  hatchet,  and 
then  went  into  the  church  with  his  sleeves  rolled  up  and  pro- 
claimed the  fact,  and  finally  was  found  over  in  Greenbush,  in  the 
cellar  of  an  unoccupied  house,  and  brought  back  for  trial.  I 
appeared  to  defend  him  without  fee  or  reward;  and  offered  to  show 
the  fact  that  he  was  crazy,  and  part  of  the  evidence  I  relied  upon 
to  show  that  he  was  insane  was  the  unnatural  atrocity  of  his  crime. 
That  was  at  the  time  when  the  American  or  Know-Nothing  excite- 
ment ran  high;  the  public  demanded  that  he  should  be  hung,  and 
he  was  condemned  to  be  hung.  The  Supreme  Court  sustained  his 
conviction,  and  it  was  carried  to  the  Court  of  Appeals,  where 
Judge  Peckham  and  myself  argued  the  case  for  the  prisoner. 

Judge  Gould,  who  had  been  elected  by  the  American  party  (none 
the  worse  for  that)  had  laid  down  the  doctrine  at  the  trial  that, 
although  in  all  the  other  elements  of  crime,  if  there  was  a  reason- 
able doubt  the  prisoner  should  be  acquitted;  yet  that,  when  you 
come  to  the  question  of  sanity  or  insanity,  the  burden  of  proof  was 
shifted,  and  it  was  incumbent  upon  the  prisoner  to  prove  his 
insanity  beyond  all  reasonable  doubt,  and  if  he  did  not,  the  normal 
condition,  which  was  sanity,  was  to  be  presumed.  The  Court  of 
Appeals  unanimously  condemned  the  doctrine  and  said,  that  on  the 
question  of  sanity,  as  well  as  on  every  other  condition  constituting 
the  offense  of  murder,  although  the  law  presumed  sanity  in  the 
first  instance,  yet  when  the  issue  was  raised  by  the  introduction  of 
proof  on  that  subject,  the  jury  must  be  instructed,  if  they  had  a 
doubt  upon  that  question,  that  doubt  should  inure  to  the  benefit  of 
the  prisoner,  and  the  prisoner  should  be  acquitted.  And  although 
two  trials  resulted  in  disagreeing  juries,  finally  Judge  Wright 
accepted  a  plea  of  manslaughter  in  the  first  degree,  and  McCann 
was  sent  to  Clinton  prison.  There  his  disease  became  fully  appar. 
ent,  and  he  was  sent  to  a  lunatic  asylum,  where  he  died  a  confirmed 
lunatic. 

Was  this  person,  then,  insane  within  the  meaning  of  the  Ameri- 
can law  ?  I  understand  the  rule  of  law  to  be  precisely  as  it  wap 
laid  down  by  the  twelve  judges  in  England  in  answer  to  a  question 
propounded  to  them,  viz.:  that  if,  by  reason  of  mental  derange- 
ment, the  prisoner,  at  the  time  he  committed  the  homicide,  was  not 
aware  of  the  real  nature  and  consequences  of  the  act,  but  labored 
under  such  a  delusion  as  to  believe  what  was  not  true,  and  that 


600  MODERN  JURY  TRIALS. 

belief  affected  Lis  condition  and  his  sanity,  and  if  he  did  not  know 
that  what  he  was  doing  was  wrong,  then  the  delusion  or  insanity, 
whatever  you  may  call  it,  operates  to  exonerate  him  from  criminal 
liability. 

This  brings  the  case  down  to  this  question  upon  this  part  of  the 
defense  :  if  you  come  to  the  conclusion  there  was  no  pistol,  is  there 
not  abundant  evidence  to  justify  an  acquittal  of  this  prisoner  upon 
the  ground  of  insanity?  I  say,  if  there  was  no  pistol,  he  was 
insane.  I  say  that  the  proof  at  least  raises  a  reasonable  doubt  upon 
it,  and,  according  to  the  authority  of  the  McCann  case,  that  doubt 
is  his  precious  inheritance.  Consider  the  prisoner's  case:  a  descend- 
ant from  ancestry  of  insane  stock,  with  insanity  breaking  out  in 
his  family,  as  stated  to  you  by  his  father.  Consider  that  the 
causes  of  insanity  are  shock  of  mind,  loss  of  near  and  dear  rela- 
tives, loss  of  property,  loss  of  position,  and  unmerited  loss  of 
character.  No  man  who  has  never  felt  the  poisonous  virus  of 
slander  curdling  his  very  blood  can  know  the  intense  effect  upon  a 
sensitive  and  proud  man  of  such  an  attack  upon  his  character  as 
resulted  from  throwing  this  young  man  of  culture  and  position  into 
prison.  His  wife  and  child  were  absent,  his  family  connections 
were  respectable,  his  business  had  been  successful;  he  had  been 
receiving  fifty  per  cent  of  that  business,  and  his  mother  had 
entrusted  him  with  its  whole  management.  In  an  evil  hour,  how- 
ever, Fisk  sought  his  acquaintance.  Fisk  had  a  mistress.  Stokes, 
with  or  without  cause,  it  matters  not  here  which,  for  we  cannot  try 
that  question,  excited  the  jealousy  of  Fisk;  and  then  commenced 
that  system  of  wrong  and  oppression  on  the  part  of  Fisk  which  is 
only  partially  revealed  by  the  evidence.  The  rules  of  the  common 
law  are  so  rigid  and  so  strict  that  we  find  great  difficulty  some- 
times in  getting  a  full  portrait  before  the  jury.  He  is  thrown  out 
of  the  oil  refinery;  covenants  and  contracts  are  violated  with 
impunity ;  he  seeks  counsel,  and  having  his  mother's  confidence, 
under  the  advice  of  counsel  he  proceeds  to  take  possession  as  the 
law  allows.  Then  come  the  minions  of  power  and  turn  him  out; 
his  business  is  broken  up,  and  his  disgrace  is  heralded  through  the 
press  when  he  was  thrown  into  prison  upon  a  false  charge;  he, 
whose  character  has  never  suffered  before,  is  branded  as  a  felon. 
He  brings  suits  yet  undecided;  injunctions  are  procured  against 
him,  which  he  seeks  to  vacate,  but  is  met  by  a  false  affidavit  made 
by  one  of  Fisk's  minions  by  the  name  of  King,  who,  having  sworn 
for  that  purpose,  so  as  to  accomplish  the  object,  and  the  motion  to 
vacate  is  denied,  runs  away  and  leaves  the  country.  Then  a 
swindling  award,  as  he  believes,  is  procured  by  his  trusting  to  the 


8TOKES-FISK  CASE,  601 

lawyers  of  Fisk,  and  Stokes  runs  round  the  city  exhibiting  the 
checks  given  for  that  award,  but  refusing  to  accept  the  money.  A 
pretended  reconciliation  takes  place,  in  which  he  is  to  receive 
$200,000;  but  about  this  time  Eaton  is  waylaid,  and  Fisk  boasts  to 
his  mistress  that  he  is  the  author  of  that  wrong.  Fisk's  agents 
begin  to  follow  stokes  everywhere;  he  seeks  relief  before  the 
grand  jury,  but  the  doors  of  the  grand  jury  are  closed  against  him. 
Fisk  boasts  of  his  plans  and  of  his  power  to  railroad  him  to  state's 
prison.  Hackett  sits  enthroned  upon  the  court  where  complaints 
against  Stokes  are  to  be  tried,  and  Barnard  and  Cardozo  sit  in  the 
oyer  and  terminer.  Fisk  goes  to  the  grand  jury,  and  his  complaint 
is  dismissed,  which  ought  to  terminate  the  matter;  but  again  and 
again  he  perseveres,  painted  harlots  go  with  him,  public  officers  are 
seen  accompanying  him  arm  in  arm,  the  doors  of  the  grand  jury 
room  swing  open  to  the  great  Fisk  to  renew  his  complaint  again 
and  again,  with  such  new  testimony  as  he  is  able  to  bring  from  the 
stews  and  houses  of  pollution  of  the  city,  against  the  character  of 
this  young  man.  In  the  meantime  the  mind  of  the  prisoner  begins 
to  break;  he  visits  his  parents  and  sends  for  a  pistol.  That  change 
in  a  man's  deportment  which  marks  the  incubation  of  insanity, 
attracts  the  attention  and  excites  the  alarm  of  the  aged  father  and 
the  watchful  mother.  That  mother  knew  every  movement,  every 
feature,  every  expression  of  the  eye;  she  is  not  present  at  all  the 
conversations  between  Edward  and  his  father,  but  when  she  comes 
her  attention  is  called  to  the  wild  and  excited  appearance  of 
Edward;  Edward  is  changed,  and  she  speaks  to  her  husband  about 
it ;  his  eyes  are  wild  and  his  manners  excited.  The  difficulties 
increase,  Fisk's  terrible  threats  begin  to  pour  in  upon  him,  he  sees 
enemies  sent  out  by  Fisk  attacking  him  on  every  hand.  He  ven- 
tures out  only  in  the  night.  He  pays  $600  to  get  rid  of  rooms 
exposed  to  the  vengeance  of  these  enemies,  real  or  imaginary.  He 
is  proud,  sensitive  and  respectably  connected.  He  begins  to  talk 
in  such  a  manner  as  to  become  a  bore  and  a  nuisance;  at  last  the 
idea  seizes  possession  of  his  intellectual  powers,  with  or  without 
foundation,  that  Fisk  entertains  a  settled  purpose  to  kill  him;  he 
knows  Fisk's  great  power;  Fisk  had  boasted  to  him  of  his  power 
and  his  resources,  and  of  his  cold  and  clammy  touch,  of  his  grave- 
yard for  his  enemies,  and  of  his  determination  to  serve  him  as 
Eaton  had  been  served. 

Then,  under  the  circumstances  disclosed  by  him  in  that  dim 
passage-way,  he  sees  a  man  enter  the  doorway;  it  proves  to  be  Fisk. 
Then  there  stands  before  him  the  mortal  enemy  who,  to  his  mind, 
had  sought  his  life ;  he  sees  him,  or  thinks  he  sees  him,  in  the  act 


602  MODERN  JURY  TRIALS. 

of  murdering  him.  He  shouts  first  this  exclamation,  "Don't fire!" 
and  then,  quick  as  lightning,  fires  two  shots,  one  after  the  other, 
with  no  time  for  premeditation.  Then  he  turns  to  avoid  the  man 
whom  he  has  shot;  he  goes  in  an  excited  and  bewildered  manner, 
calling  out,  "  There's  a  man  shot,  get  a  doctor; "  all  concur  in  say- 
ing that  he  presented  the  appearance  of  an  excited  and  bewildered 
maniac,  in  substance. 

O,  gentlemen,  would  you  hang  that  man,  or  would  you  say  to 
him,  as  the  Master  said  to  his  enemies  when  they  were  crucifying 
him  upon  the  cross, "  Father,  forgive  them,  for  they  know  not  what 
they  do?" 

Gentlemen,  upon  all  these  questions,  the  law,  the  civil  law  and 
the  common  law,  is  full  of  maxims  of  charity,  benignity  and  mercy, 
as  applicable  to  a  trial  for  crime.  Do  not  misunderstand  me;  you 
have  not  the  pardoning  power;  and  if  a  man  is  proved  clearly  to 
be  guilty,  you  must  say  so.  But  in  weighing  conflicting  testi- 
mony, in  examining  into  the  heart  of  a  man  charged  with  crimef 
where  the  essence  of  that  crime  consists  in  the  wicked,  murderous 
purpose,  it  is  your  duty  to  exercise  charity,  gentleness  and  mercy. 
There  are  numerous  maxims,  but  I  will  only  read  one  or  two  of 
them  here  that  I  have  before  me  in  the  Latin  tongue,  and  in  the 
translation  Coke  says,  "  In  criminal  cases  the  proofs  ought  to  be 
clearer  than  light."  Hale  and  Plowden  say,  "  In  penal  cases  the 
more  favorable  interpretation  should  be  adopted."  The  same  great 
writers  say,  "  Always  in  doubtful  cases,  the  more  favorable  views 
are  to  be  preferred,  *.  e.y  the  more  liberal  interpretations  are  to  be 
followed."  "  All  things  are  presumed  in  favor  of  life,  liberty  and 
innocence." 

And  now,  I  have  finished  my  argument.  As  the  conclusion  of  the 
whole  matter,  I  submit  that  there  is  a  reasonable  doubt  on  each  one 
of  the  four  questions  that  I  have  discussed  before  you: 

First,  There  is  a  reasonable  doubt  whether  the  prisoner  inflicted 
a  mortal  wound,  of  which  mortal  wound  James  Fisk  died. 

Second,  There  is  a  reasonable  doubt  whether  he  killed  James  Fisk 
with  a  murderous  and  premeditated  design  to  kill. 

Third,  There  is  a  reasonable  doubt  whether  the  killing  of  James 
Fisk,  if  he  died  from  the  wound,  was  not  perpetrated  under  such 
circumstances  as  to  constitute  justifiable  homicide. 

Fourth,  There  is  a  reasonable  doubt  whether  the  prisoner's  mind 
was  not  in  that  disordered  condition  that  he  was  not  capable  of 
understanding  the  nature  of  his  act,  and  to  know  that  the  act  wa» 
morally  and  legally  wrong. 

It  is  enough  for  me  that  I  have  shown  a  doubt  upon  a  single  one 


8TOKES-PISK  CASE.  603 

of  these  various  propositions.  It  is  not  merely  a  doubt  on  the 
whole  case,  but  it  is  a  doubt  on  any  branch  of  the  case  or  on  all  the 
branches  put  together,  which  entitles  the  prisoner  to  an  acquittal. 
Therefore,  gentlemen,  in  the  name  of  justice,  in  the  name  of  the 
law,  in  the  name  of  the  oaths  which  you  have  taken,  I  ask,  aye, 
I  demand,  the  acquittal  of  this  prisoner  from  the  charge  of  murder! 

I  know  the  power  of  the  district  attorney,  who  is  to  follow  me. 
I  know  with  what  effect  the  whole  artillery  of  the  law,  wielded  by 
the  representative  of  the  government,  will  be  brought  against  this 
defenseless  young  man,  in  whose  behalf  the  words  I  am  now  utter- 
ing will  be  the  last  words  that  will  be  heard  on  earth,  in  his  defense, 
before  his  fate  shall  be  decided.  But  I  know,  with  all  his  power, 
there  is  one  thing  the  district  attorney  cannot  do — he  cannot  restore 
the  dead  to  life,  and,  until  that  Divine  attribute  is  conferred  upon 
him,  he  cannot  breathe  the  breath  of  life  into  the  corrupt  and  per- 
jured testimony  which  has  been  given  in  this  case  on  the  part  of 
the  prosecution.  And  I  tell  you,  gentlemen,  that  in  determining 
the  questions  of  fact  in  this  case  the  responsibility  rests  with  you, 
and  with  you  alone. 

Six  hundred  years  ago  the  barons  of  England  wrung  from  an 
English  king  the  Magna  Charta;  among  the  privileges  conferred  by 
it  was  the  right  of  a  citizen  to  be  tried  by  a  jury  of  his  peers;  they 
would  not  trust  the  judges,  who  held  their  offices  from  the  crown; 
they  feared  they  might  lean  in  favor  of  the  crown  in  a  contest 
between  a  citizen  and  the  government;  and  this  great  privilege,  this 
great  bulwark,  has  been  maintained  in  England  to  this  day.  This 
right  of  trial  by  jury  was  brought  to  this  country  by  our  ancestors 
and  has  been  imbedded  deep  in  all  our  constitutions  of  the  general 
and  of  the  state  governments.  What  does  it  mean  ?  Is  it  not 
equally  valuable  here  as  in  England  ?  True,  our  judges  are  elected 
by  the  people,  but  the  people,  the  masters,  may  be  quite  as  unjust 
and  arbitrary  as  the  king.  It  is  the  jury  who  alone  are  responsible 
for  the  verdict  that  shall  be  pronounced;  you  cannot  divide,  you 
cannot  delegate,  you  cannot  share  the  responsibility  of  that  verdict 
with  any  power  or  tribunal  on  earth. 

This  trial  by  jury  requires  that  the  verdict  shall  be  unanimous. 
Crude  reformers  sometimes  talk  about  a  two-thirds  or  three-quar- 
ters verdict  of  a  jury;  but  they  are  the  merest  quacks,  and  know 
not  whereof  they  speak.  Until  the  constitution  of  the  United 
States,  t,he  constitution  of  New  York,  and  the  Bill  of  Rights  shall 
all  be  torn  in  pieces — until  those  great  privileges  that  every  Anglo- 
Saxon  cherishes,  the  habeas  corpus  and  the  Trial  by  Jury  are  anni- 
hilated, that  unanimity  will  be  demanded  as  the  inestimable  birth- 


604  MODERN  JURY  TRIALS. 

right  of  every  man  charged  with  crime.  It  is  the  reasonable  doubt 
of  every  man  on  the  jury  that  must  be  removed  before  the  pris- 
oner's life  is  to  be  forfeited.  Where  twelve  are  sworn,  each  one 
holding  a  veto  upon  the  action  of  his  fellows,  while  you  will,  of 
course,  receive  information  from  all  sources  that  shall  guide  you, 
from  the  judge,  from  the  district  attorney  and  from  the  counsel  for 
the  defendant,  yet  if  you  have  an  honest,  conscientious  doubt,  one  or 
all  of  you,  as  to  the  guilt  of  the  prisoner,  that  doubt  is  his  most 
priceless  possession,  more  valuable  than  diamonds,  or  silver,  or  gold. 
The  law  gives  it  to  him;  the  law  demands  unanimity ;  the  law  declares 
that  a  reasonable  doubt  must  inure  to  his  benefit;  and  without  that 
humane  and  sacred  principle,  how  liable  we  are  to  have  mistakes 
occur  in  the  administration  of  justice  ! 

As  I  have  said  before,  so  I  repeat,  that  while  you  have  not  the 
pardoning  power,  you  have  not  only  the  right,  in  passing  upon  the 
question  of  the  life  or  death  of  my  client,  but  it  is  your  duty  to 
deal  mercifully,  gently  and  tenderly.  Shakespeare,  in  one  of  his 
immortal  piays,  "  Measure  for  Measure,"  thus  eulogizes  this  attribute 
of  mercy,  the  quality  belonging  to  the  white-robed  angel  who  sits 
on  the  left  hand  of  the  Throne,  and  who  is  associated  with  Justice 
in  the  hearts  and  minds  of  all  who  hold  in  their  hands  the  power 
over  the  life  or  the  death  of  a  human  being.  Isabella  is  pleading 
with  Angelo,  as  I  plead  with  you,  for  the  life  of  her  brother. 
She  says: 

"Alas!  AJas? 

Why  all  the  souls  that  were,  were  forfeit  once; 
And  He  that  made  the  vantage  best  have  took. 
Found  out  the  remedy;  bow  would  you  be 
If  He  which  is  the  top  of  judgment,  should 
But  judge  you  as  you  are  ?    O  I  think  on  that; 
And  mercy  then  will  breathe  within  your  lips 
Like  men  new  made." 

Angelo  says: 

"  He's  sentenced;  'tis  too  late." 

Isabella: 

"Too  late?    Why  no:  I  that  do  speak  a  word 
May  call  it  back  again;  well  believe  this, 
No  ceremony  tb_.t  to  great  ones  'longs; 
Not  the  King's  c^own.  nor  the  deputed  sword; 
The  marshal's  truncheon,  nor  the  judge's  robe; 
Become  them  with  one  half  so  good  a  grace, 
As  mercy  does.    If  he  ha-I  been  as  you, 
And  you  as  he,  you  would  have  slipped  like  him; 
But  he,  like  you,  would  not  have  been  so  stern." 

I  desire,  gentlemen,  to  thank  you  for  the  patient  attention  with 
which  you  have  listened  to  this  most  protracted  argument.  I 
desire  to  thank  the  court  for  opening  the  doors  to  the  admission  of 
evidence,  and  I  am  truly  thankful  that,  under  the  rulings  of  the 


8TOKE8-FISK  CASE.  605 

court  of  appeals  and  the  rulings  of  his  honor  here,  we  have  been 
enabled  to  introduce  a  body  of  proof  that  presents  this  case  in  a 
new,  clearer  and  purer  light.  It  has  been  the  knowledge  of  these 
facts,  not  all  disclosed  to  the  public,  which  has  supported  and 
encouraged  the  counsel  for  the  prisoner;  it  is  this  knowledge 
which  has  stimulated  us  to  the  exertion  and  the  tremendous  labor 
which  we  have  employed  in  the  defense  of  this  young  man,  in  the 
unequal  struggle  between  himself  and  the  government,  for  the 
preservation  of  his  life. 

We  hoped  that  the  time  would  come  when  the  truth  might  be 
exhibited  and  his  innocence  established.  You  will  pardon  me  for 
saying,  it  seems  to  me — I  may  be  too  sanguine,  I  may  be  too  hope- 
ful— but  it  does  seem  to  me  that  that  hour  is  near  at  hand.  Oh, 
gentlemen,  deal  mercifully  with  this  prisoner ;  let  the  sword  of 
justice  fall,  if  in  your  hearts  and  consciences  you  believe  it  should 
fall ;  but  if  you  can,  consistently  with  your  oaths,  do  not  bring 
down  the  gray  hairs  of  that  old  man  in  sorrow  to  the  grave  ;  or  of 
that  loving  mother,  or  of  those  relatives  who  have  properly  rallied 
around  Edward  S.  Stokes  in  this  hour  of  supreme  peril  1 

The  prisoner  comes  to  you  to-day  from  the  Tombs,  where  for 
nearly  two  years  he  has  been  imprisoned  ;  he  comes  to  you  with 
his  head  prematurely  sprinkled  with  gray  hairs  ;  he  has  already 
suffered  almost  the  agonies  of  death ;  condemned  to  die,  and  yet 
he  lives  !  Spare  him  if  you  can.  It  is  the  least  measure  of  justice 
that  you  can  do  for  him,  to  send  him  forth  a  free  man,  for  even  if 
you  do  that,  he  goes  out  ruined  in  reputation,  in  constitution,  and 
broken  down  in  spirit,  and  in  fortune.  Now  I  must  yield  to  the 
district  attorney  ;  and  henceforth  I  must  remain  silent,  except  so 
far  as  I  may  deem  it  necessary  to  take  exceptions,  until  after  you 
shall  have  pronounced  your  verdict. 

I  will  only  say  in  conclusion,  gentlemen,  that  I  hope  no  such  sad 
and  melancholy  fortune  awaits  me,  as  that  I  shall  be  compelled  to 
witness  a  repetition  of  the  scene  that  transpired  in  this  room,  in 
January  last,  when,  at  the  gloomy  hour  of  twelve  o'clock,  on  Sat- 
urday night,  with  this  room  dimly  illuminated,  I  saw  the  foreman 
of  the  jury  in  the  place  where  you  now  sit  to-day  (pointing  to  the 
foreman),  rise  and  pronounce  those  fearful  words,  "guilty  of  mur- 
der in  the  first  degree,"  and  I  heard  instantly  afterwards  such  a 
wail  of  sorrow,  such  a  shriek  of  heart-bursting  agony  coming  from 
the  lips  of  that  affectionate  and  devoted  sister,  that  it  will  remain 
imprinted  upon  the  tablets  of  my  memory,  and  be  heard  ringing 
in  my  ears  so  long  as  a  merciful  Creator  shall  spare  my  life.  Oh, 
I  hope  to  be  able  to  be  present  at  a  scene  of  a  different  descrip- 


606  MODERN  JURY  TRIALS. 

tion,  when  the  glad  tidings  shall  be  uttered  by  your  honored  lips 
(addressing  the  foreman),  that  shall  prove  that  the  prisoner's  inno- 
eence  of  this  foul  charge  has  been  vindicated,  and  that  he  is  no 
murderer;  that  shall  open  the  doors  of  the  gloomy  prison  house, 
that  shall  send  him  forth  a  free  man  from  this  court  house,  pre- 
pared and  resolved,  as  I  believe  he  is,  by  a  life  of  honorable  use- 
fulness, to  satisfy  you  that  you  never  shall  have  cause  to  regret 
that  you  have  pronounced  a  verdict  of  true  deliverance  from  the 
perils  of  an  untimely  death  upon  the  scaffold  1 

Manslaughter;  four  years'  sentence. 


THE  BUFOKD-ELLIOTT  CASE. 

Tried  at  Owenton,  Ky.,  July,  1879. 

This  was  one  of  the  most  remarkable  tragedies  and  trials  in 
America.  Col.  Buford,  of  Frankfort,  Kentucky,  was  a  bachelor  of 
inherited  rank,  ability  and  considerable  fortune.  He  became 
involved  in  a  series  of  unfortunate  law-suits,  losing  not  only  his 
own  property,  but  that  entrusted  to  him  by  his  sister.  These  losses 
seem  to  have  changed  the  whole  man;  he  brooded  over  them 
nearly  twelve  years,  until  the  March  term  of  the  Court  of  Appeals, 
held  in  Frankfort,  1879,  when,  after  adjournment  of  court  and  near 
the  hotel  where  the  three  judges  were  about  to  dine,  he  was  seen 
with  a  shot-gun  and  accosted  by  Judge  Elliott,  who,  in  a  friendly 
manner,  asked  where  he  was  going,  to  which  he  replied,  "  I  am 
going  a  duck  hunting;  will  you  go  along  ?"  The  judge  answered, 
"No,  I  can't  get  away."  They  had  then  reached  the  hotel,  under 
the  window  where  Judge  Elliott's  wife  was  awaiting  him,  when, 
without  a  sign  of  warning,  Buford  shot  the  judge  in  the  body,  kill- 
ing him  almost  instantly. 

Judge  Elliott  was  a  splendid  Southern  gentleman,  a  scholar, 
brave,  chivalrous,  of  generous  impulses,  a  warm  and  kindly  nature, 
whom  the  people  of  Kentucky  all  loved.  He  was  a  great  hunter, 
a  fine  horseman,  and  called  by  his  devoted  wife  her  "mountain 
king." 

The  sudden  killing  of  such  a  respected  judge,  in  cool  blood, 
without  cause,  created  intense  excitement  across  the  continent. 


BUFORD-ELLIOTT  CASE.  607 

The  press  denounced  it;  the  bar  passed  strong  condemnatory  reso- 
lutions; the  pulpit  openly  rebuked  the  cruel  deed.  No  lawyer  of 
eminence  in  the  whole  region  round  about,  offered  or  could  be 
hired,  to  defend  Col.  Buford. 

Judge  Curtis,  of  New  York,  an  old  friend  of  Col.  Buf ord's  family, 
was  appealed  to  and  telegraphed  his  consent  to  defend  him.  He 
left  at  once,  and  engaging  a  horse,  traveled  sixty  days  in  the 
saddle  in  securing  evidence  of  insanity,  of  which  there  was  a  posi- 
tive hereditary  tendency.  He  practically  made  the  defense  and 
saved  his  client  from  the  gallows.  Throwing  all  the  warmth  of 
his  youthful  inspiration  into  an  almost  hopeless  case,  the  result  of 
his  effort  was  a  marvel  to  the  profession. 

This  is  a  bare  statement  of  a  tragedy  that  moved  the  entire 
country  as  it  had  not  been  moved  since  the  trial  of  Webster  or 
Beecher.  To  kill  a  judge  of  a  higher  court,  unarmed,  in  Kentucky 
excited  the  highest  indignation.  It  was  a  blow  at  the  chivalry 
and  pride  of  the  great  commonwealth,  the  home  of  Clay  and  Crit- 
tenden;  and  the  trial  commanded  the  first  legal  talent  of  the  state 
for  the  prosecution. 

The  first  trial  was  held  at  Owenton  (after  a  change  of  venue 
from  Frankfort),  in  July,  1879.  This  was  the  great  battle  in  the 
case;  the  later  trial  in  January,  1881,  was  less  interesting,  as  public 
sentiment  had  become  dulled  on  the  subject.  The  chief  interest 
centered  in  the  arguments  of  counsel,  which  were  unusually  elo- 
quent. Two  of  them  are  given  at  some  length.  In  that  state  the 
jury  fix  the  punishment  of  the  accused,  if  found  guilty.  For  the 
People  appeared  Col.  W.  C.  P.  Breckenridge,  John  Rodman,  and 
Warren  Montfort.  For  the  defense,  Judge  Geo.  M.  Curtis  of  New 
York,  E.  E.  Settle  and  Phil.  B.  Thompson. 

THE   EVIDENCE. 

Of  the  witnesses  sworn  the  following  will  show  the  tenor  of  the 
evidence  taken.  The  defense  of  insanity  was  proven  by  alternate 
experts  and  laymen,  farmers,  bankers,  merchants  and  doctors. 
Among  the  latter, 

Dr.  Hurst  swore:  "I  don't  believe  he  ever  drew  a  sane  breath.** 

Dr.  Poynter  swore:  "The  Buford  family  were  all  eccentric. 
Tom  was  excited  and  wild;  he  was  insane  on  his  law  suit." 

Dr.  Gale,  superintendent  of  Central  Asylum,  said:  "  He  had  a 
glassy  look  about  the  eye;  he  thought  Buford  insane.  Insanity  is 
a  disease.  He  knew  of  a  similar  case  at  his  asylum,  who  claimed 
to  be  king  of  all  the  German  Provinces.  Insane  persons  rarely 
commit  violence,  unless  they  have  a  delusion.  Homicide,  withori 


608  MODERN  JURY  TRIAXS. 

any  cause,  is  evidence  of  insanity.  Insanity  is  both  a  disease  and  a 
fact;  one  whose  passions  are  above  his  intellect,  is  to  that  extent 
insane." 

Dr.  Bright  believed  Buford  insane. 

Dr.  Shouse  was  of  the  same  opinion. 

The  strongest  insanity  evidence  was  given  by  Dr.  T.  S.  BeH, 
Prof,  of  the  Practice  and  Science  of  Medicine  in  the  University  of 
Louisville:  Insanity  has  always  been  a  favorite  study  with  me, 
and  I  teach  the  science  of  it  from  my  chair.  My  opinion  has  been 
made  up  entirely  since  coming  into  court.  I  have  listened  care- 
fully to  the  testimony,  and  find  he  has  for  a  long  time  been  a  sleep- 
less man,  and  frequently  greatly  prostrated  in  mind  and  body.  No 
one  can  give  any  reason  for  his  sleeplessness,  except  from  the  state 
of  his  mind.  I  am  confident  that  he  had  been  for  a  long  time  prior 
to  the  killing  approaching  insanity.  He  could  not  talk  of  anything 
but  his  suit,  and  it  had  a  tendency  to  dethrone  his  mind.  I  do  not 
mean  by  dethroned  that  he  was  insane  on  all  subjects,  but  that  his 
mind  had  lost  its  rudder.  Some  of  the  worst  cases  ever  seen  were 
of  this  character.  The  death  of  his  sister,  the  loss  of  money,  etc., 
were  calculated  in  his  case  to  produce  insanity.  *  *  Frequently 
lunatics  premeditate  for  a  long  time  the  commission  of  a  crime,  and 
carry  it  out  with  great  ingenuity.  For  instance,  the  cas«  of  Bell- 
ingham,  who  killed  the  prime  minister  because  he  imagined  he  had 
suffered  some  wrong  at  the  hands  of  the  government  There  is  a 
similarity  between  that  case  and  this,  in  that  Elliott  had  done  no 
personal  wrong  to  the  accused.  The  Hatfield  murder  was  also  pre- 
meditated. A  man  may  be  insane  on  one  subject  and  yet  display 
great  intelligence  on  all  others.  *  *  The  prisoner's  expression 
that  he  "did  not  shoot  Elliott  in  the  head  because  he  thought  it 
weak;**  his  smiling  after  the  deed,  kissing  his  gun  and  waving  his 
hand  over  the  form  of  the  deceased,  and  many  other  remarks  and 
acts  show  derangement,  as  also  his  letter  to  his  niece.  His  sleep- 
lessness in  the  absence  of  any  physical  suffering  is  the  highest  evi- 
dence of  the  presence  of  mental  trouble. 

The  salient  points  of  the  testimony  were  called  up,  and  the  wit- 
ness invariably  testified  that  they  evidenced  a  mind  diseased.  He 
would  branch  off  into  dissertations  upon  the  physical  structure  of 
the  brain,  discuss  the  various  phenomena  indicative  of  insanity,  and 
back  up  his  theories  with  that  number  and  variety  of  illustrations 
with  which  his  memory  is  so  marvellously  stocked. 

For  the  state,  and  against  the  plea,  appeared  several  judges, 
farmers  and  bankers,  la-lies  and  gentlemen.  A  fair  sample  of  theii 
evidence  would  be  like  this: 


BUFORD-ELLIOTT  CASE.  609 

J.  W.  Tate,  of  Frankfort:  Have  known  Col.  Buford  for  about 
twenty-five  years.  On  the  morning  of  the  day  that  Elliott  was 
killed,  saw  Buford  and  Elliott  at  breakfast.  Often  saw  Col. 
Buford  playing  cards  with  the  ladies  at  the  hotel.  We  boarded  at 
the  same  hotel.  I  never  saw  anything  peculiar  about  him.  He  was 
to  me  always  a  very  attractive  man.  He  is  a  sane  man  and  knows 
right  from  wrong. 

W.  H.  Sneed,  city  judge  of  Frankfort,  knew  Col.  Buford  for  the 
year  previous  to  the  killing.  Boarded  with  him  at  the  Capital 
Hotel,  and  saw  him  nearly  every  day.  The  day  it  was  announced 
a  new  hearing  had  been  granted  him — five  or  six  months  before  the 
killing — he  said:  "I  hope  my  case  will  fall  into  the  hands  of  a 
lawyer."  I  saw  him  eight  minutes  before  he  killed  Judge  Elliott, 
sitting  on  the  steps  of  the  hotel ;  saw  him  immediately  after 
the  killing.  In  my  opinion  I  thought  him  perfectly  sane.  I 
regarded  him  as  a  man  of  fine  intelligence.  When  in  my  court 
I  asked  Buford,  "  Colonel,  how  did  this  occur  ?"  He  said : 
"Sneed,  I  made  up  my  mind  this  morning  after  my  interview 
with  Cofer.  Know  the  penalty  and  am  prepared  for  the  con- 
sequences. Last  Monday  I  would  have  killed  Pryor  had  I  met 
him,  and  now  his  children  have  saved  him."  He  then  said,  "  Sneed, 
is  Elliott  dead  ?"  I  said  he  was,  and  Buford  remarked,  "  Great 
God  !  I  didn't  think  he  could  survive  the  wad  I  put  into  him !" 
He  then  called  for  his  gun,  kissed  it  and  said,  "  Old  friend,  we 
have  had  much  sport  together;  you  have  done  me  much  service, 
and  I  reckon  this  will  be  the  last."  He  was  very  cool,  probably 
cooler  than  I  was,  but  from  my  knowledge  of  his  character,  I  waft 
prepared  for  it.  He  did  not  exhibit  any  emotion  that  I  could  dis- 
cover. He  sat  with  his  head  down,  and  talked  in  an  off-hand 
manner. 

Dr.  Chipley  did  not  believe  Buford  insane.  He  had  made  a  care- 
ful examination,  and  swore  intelligently  to  the  sanity  of  the 
prisoner.  His  evidence  was  extended  and  too  long  to  repeat.  Dr. 
Chipley  was  sharply  cross-examined  by  Judge  Curtis,  but  remained 
firm.  The  doctors  disagreed,  as  usual,  but  stood  more  for  insanity 
than  against  it.  Over  sixty  witnesses  on  each  side  were  examined. 

ARGUMENTS    OF   COUNSEL. 

The  argument  of  Col.  Wm.  P.  C.  Breckenridge,  of  Lexington^ 
is  a  true  type  of  Southern  eloquence.  It  abounds  in  finely  rounded 
periods,  and  was  delivered  with  an  ease  and  grace  of  rhetoric  rarely 
equalled.  Considered  as  an  appeal  for  the  honor  and  integrity  of 
law,  it  is  a  fine  specimen  of  excellent  English.  It  is  pure  in  tone, 
89 


610  MODERN  JURY  TRIALS. 

free  from  vindictive  justice,  humane  and  honorable.  The  advo- 
cate is  not  lost  in  the  cause.  He  is  as  fair  in  the  standard  of 
equity  as  a  just  judge.  His  references  to  "  that  Divinity  that  doth 
hedge  a  judge  and  hold  him  forever  sacred,"  to  "  law  assassinated" 
"justice  murdered"  " law's  administrators  intimidated,"  are  excel- 
lent. His  touching  allusion  to  the  beautiful  birth-place  of  Buford. 
"  A  place  so  beautiful,  that  God  created  it  with  a  smile  and  the 
smile  had  crystalized  on  every  landscape,"  is  rare.  Fancy  cannot 
exceed  this  picture.  If  such  speeches  are  not  read  with  a  relish, 
then  variety  has  lost  its  charm. 

Col.  Breckenridge  is  nearly  forty-four  years  old,  about  five  feet 
nine  and  a  half  in  height,  is  strongly  built,  and  a  descendant  of  the 
old  families  of  Kentucky,  eminent  as  an  orator  and  advocate. 

He  speaks  with  great  fluency,  without  notes,  and  is  highly  rhet- 
orical as  well  as  impressive  in  delivery.  Something  of  his  happy 
style  may  be  seen  in  his  recent  words  of  welcome  to  the  Sir 
Knights,  at  Lexington,  which  is  a  gem  in  its  way.  He  said : 

You  come  in  the  power  and  with  the  gay  apparel  of  peace,  and 
we  greet  you  in  holiday  attire  and  with  the  sunshine  of  rejoicing. 
We  mark  this  day  with  a  white  stone.  We  bid  you  to  the  dance 
and  banquet;  to  our  homes  and  our  salt;  and  we  trust  that  the  hours 
you  spend  with  us  will  linger  in  your  hearts  with  only  pleasant 
memories  ;  and  when  you  are  gone,  we  will  count  time  by  your 
meeting  as  peasants  do  by  holy  days,  and  maidens  do  by  trysting 
hours. 

In  the  name  of  that  Commandery  and  all  her  Knights ;  and  of 
all  the  citizens  of  the  old  town  where  these  men  lived,  I  welcome 
you  to  our  homes.  The  city  lifts  up  her  gates  to  give  you  wel- 
come; the  doors  swing  inward  to  beckon  you  to  enter  ;  our  hearts 
go  out  more  than  half  way  to  meet  you.  In  this  glad  month,  with 
the  fragrance  of  the  apple  blossoms,  we  mingle  the  sweeter  fra- 
grance of  brothers'  welcome ;  and  to  the  melody  of  the  birds  we 
add  the  music  of  our  hail.  With  blare  of  trumpet  and  beat  of 
drum  with  waving  banner  and  flowing  plume  ;  with  glistening 
sword  and  prancing  steed,  we  went  out  to  escort  you  in  ;  and  now 
that  you  are  under  our  roof-tree,  with  open  heart  and  extended 
hand  we  bid  you  welcome. 

ADDRESS    OF    COL.  BRECKENRIDGB. 

May  it  please  your  Honor  and  Gentlemen  of  the  Jury  —  I  am 
here  in  the  discharge  of  a  professional  duty  —  a  most  unpleasant 
duty,  most  reluctantly  undertaken.  I  am  here,  as  you  are,  under 


BUFORD-ELLIOTT  CASE.  611 

the  sanction  of  an  oath,  being  an  officer  of  this  court,  to  try  and 
aid  you  in  coming  to  a  just  verdict.  I  shall  try  to  speak  with  the 
overshadowing  influence  of  that  solemn  thought.  I  shall  try  not 
to  distort,  to  twist,  or  even  rigorously  construe  the  evidence  upon 
which  you  are  to  found  that  verdict.  I  shall  indulge  in  no  flowers 
of  rhetoric,  no  display  of  eloquence,  even  if  I  were  able  to  make 
such  a  display.  I  shall  speak  in  the  simple  Anglo-Saxon,  and 
explain  to  you  my  view  of  the  grounds  upon  which  you  are  to 
perform  your  duty,  which  by  the  choice  of  the  commonwealth  and 
the  prisoner  has  devolved  upon  you.  Nay,  you  are  the  common- 
wealth of  Kentucky  for  the  time  being;  and  more,  so  far  as  human 
beings  can  be  given  divine  power,  you  represent  the  divine  power, 
because  by  the  ordinance  of  God  civilized  society  is  given  the  right 
to  take  human  life.  You  are  to-day  that  society,  deliberating 
upon  this  most  solemn  of  all  issues.  The  parties  to  this  issue  are 
not  the  dead  judge  who  fell  at  the  door  of  the  temple  of  justice 
for  an  act  which  he  performed  inside  of  that  temple,  but  it  is  the 
commonwealth  of  Kentucky,  whose  servant  and  minister  he  was, 
on  the  one  side,  and  the  prisoner,  who  killed  him,  on  the  other.  I 
represent,  for  the  time  being,  that  commonwealth  whose  servant 
was  so  untimely  taken  off,  and  who  comes  before  this,  another  of 
her  servants  constituted  according  to  her  laws,  and  places  in  your 
hands  the  determination  as  to  whether  that  taking  off  was  a  crimi- 
nal or  simply  an  insane  act. 

I  represent  the  law  of  the  land,  which  asks  that  it  may  be 
enforced  and  vindicated,  not  that  vengeance  may  be  done,  but  that 
law  may  be  administered,  and  by  this  precedent  respected  in  all 
other  cases.  I  represent  social  order  that  there  may  be  no  violence 
in  the  land.  I  represent  personal  security,  that  there  may  be  no 
intimidation  in  the  state.  I  represent  justice,  that  its  courts  may 
not  be  intimidated  in  the  discharge  of  their  duty.  I  represent  the 
body  of  the  people,  whose  servant  has  been  destroyed  because  of 
the  discharge  of  his  duty,  in  that  and  by  your  verdict  all  other 
servants  may  know  that  they  stand  panoplied  by  law,  surrounded 
by  the  security  of  the  inviolable  law,  and  that  all  who  dare  to  lay 
sacrilegious  hands  upon  them  will  receive  the  just  punishment  of 
his  crime.  I  also  represent  the  family  of  the  dead  judge,  who  do 
not  come  to  ask  vengeance  at  your  hands,  but  that  the  law,  of 
whom  he  was  a  minister,  may  be  vindicated  by  your  action.  If  I 
know  my  own  heart,  I  have  not  one  hard  word  to  utter  nor  angry- 
word  to  speak.  I  have  no  personal  feeling  in  this  matter,  one 
way  or  the  other,  so  far  as  the  mere  person  is  concerned.  I  have 
no  feeling  in  the  whole  case  ;  that  is,  outside  of  that  feeling  which 


612  MODERN  JURY  TRIALS. 

every  law-abiding  citizen  has  in  this  commonwealth.  I  am  simply 
a  member  of  the  society  in  which  this  crime  has  been  committed, 
and  an  officer  of  the  law.  My  wife  and  my  children  are  under  the 
protection  of  the  same  law  that  you  are,  and  I  have  no  other  mat- 
ter involved  in  it,  and  am  not  more  interested  than  every  citizen  of 
the  commonwealth  should  be,  and  it  is  as  a  citizen  of  the  common- 
wealth, whose  duty  has  lain  and  whose  life  has  been  to  some  extent 
devoted  to  a  training  which  should  fit  the  mind  to  judge  of  these 
questions,  that  I  come  before  you.  I  simply  speak  to  you  in  this 
capacity,  and  I  beg  you  that  if,  in  the  midst  of  the  zeal  of  advo- 
cacy, I  should  say  aught  that  ought  to  be  unsaid,  you  will  forget 
it.  I  desire  —  in  the  sight  of  God  I  do  desire  —  that  the  verdict 
you  shall  render  and  the  judgment  based  upon  it  may  be  such  a 
verdict  and  judgment  as  He  will  approve.  I  unite  with  my  y^ung 
brother  that  God  does  dwell  in  the  innermost  recesses,  and  does 
see,  and  that  you  can  not  hide  yourself  from  Him  ;  and,  if  I  can, 
shall  myself  try,  and  I  will  appeal  to  you  to  act  to-day  feeling  that 
what  we  are  doing  is  done  not  only  in  the  sight  of  the  civilized 
world,  not  merely  in  the  sight  of  this  large  and  intelligent  audience, 
and  with  the  entire  state  looking  on,  but  we  are  acting  before  a 
higher  power  and  in  a  diviner  sight  ;  so  that  it  may  not  be  said 
that  we  have  done  anything  of  which  we  would  be  ashamed  if  we 
were  conscious  of  the  presence  of  that  higher  power.  And  if  I  am 
not  equal  to  that  lofty  view — and  I  may  well  fall  below  it — when 
you  go  to  the  jury-room  I  pray  you  that  you  may  try  to  that  high 
conception  of  duty,  and,  when  you  determine  your  verdict,  deter- 
mine the  issue,  not  only  in  the  view  of  the  people  of  this  common- 
wealth, but  for  law  and  order  and  justice,  and  in  the  sight  of  this 
higher  power,  and  that,  when  you  come  out  of  the  jury-room,  you 
may  feel  that  you  have  done  nothing  of  which  you  may  feel  that 
you  or  your  children  may  be  ashamed,  or  of  which  you  may  be 
ashamed  in  the  sight  of  God. 

It  has  been  said  by  the  distinguished  gentleman  opening  the 
argument  for  the  defense  that  this  is  no  ordinary  case,  and  no  ordi- 
nary criminal.  In  a  certain  sense  it  is  true.  In  a  certain  sense  it 
is  not  true.  It  is  no  ordinary  case,  and  yet  it  is  to  be  decided  by 
the  ordinary  rules  of  evidence  and  law.  No  ordinary  criminal; 
and  yet  you  are  to  mete  out  the  same  justice  to  Buford  as  to  the 
loftiest  or  the  lowliest  citizen  coming  before  a  tribunal  of  human 
justice.  It  is  no  ordinary  case  in  the  whole  history  of  American 
jurisprudence — nay,  in  the  whole  history  of  English-speaking 
peoples.  Never  before  but  once  was  a  judge  killed  in  the  perform- 
ance of  his  duty.  In  all  the  ages  in  which  our  English-speaking 


BUFORD-ELLIOTT  CASE.  613 

people  have  developed  their   history,  and   formed  au«l  perfected 
their  civilization,  never  hut  once  did  the  hand  of  violence  dare  to 
lay  itself  upon  a  judge.     Our  fathers  and  their  fathers,  and  their 
fathers  before  them,  have  hedged  about  him  who  was  to  administer 
justice  with   a  certain   divinity.     He   represented  the   foundation 
stone  of  social  order.     In  times  of  civil  commotion   and  disorder 
sole  refuge  of  the  oppressed,  the  only  protection  of  the  innocent 
was  the  court  and  the  officer  who  presided.     While  it  was  pure  all 
forms  of  corruption  might  be  set  aside  and  reformation  take  their 
place.     As  long  as  it  was  independent  there  was  some  hope  that 
the  future  might  be  better  than   the  present,  and  so  our  English- 
speaking  ancestors  have  hedged  about  the  office  of  a  judge  with  a 
certain  d.vinity.     Suddenly,   in  the  capital  of  Kentucky,  without 
preliminary  warning,  on   a  March  day,  the  judge  of   the  highest 
tribunal    of    the  state  fell    by  the   hand  of   violence   just    after 
leaving   his    bench,    and   the  supposed   motive    was  that  he  who 
killed  him  had  been  disappointed  by  the  decision  of  the  tribunal 
of  which  the   dead  man  was   a   member.     It  necessarily  shocked 
mankind.     For  if  the   bench  be  not  secure,   if  the  judge  be  not 
safe,  if  the  shot-gun   be   the  last  court   of  resort,  if  beyond  the 
revisory  and  supervisory  tribunals  is  yet  the  violence  of  litigants; 
and  if  deadly  weapons  are  to  make  the  final  appeal,  the  cause  of 
law  and   order,  the  protection  of  the  citizen,  the   security  of  the 
people,  are  but  empty  names.     It  is  not   merely  that  John  Elliott 
fell.     It  was  that  law  was  assassinated,  that  justice  was  murdered, 
that  the  administration   of  the   law   became  intimidated,  that   he 
who  decided  and  he  who  heard  and  who  had  to  pass  upon  cases,  had 
to  act  not  only  according  to  law  and  according  to  the  long-estab- 
lished precedents  of  justice,  but  that  he  decided  it  under  another 
responsibility — at  the  risk  of  his  life;  until  skill  in  weapons,  accu- 
racy in  aim,  protection   by  body  guards,  and  all  the  other  things 
which  accompany  times  of  violence  and  commotion  would  become 
the  necessary  paraphernalia  of  courts.     My  young  brother  has  said 
that  this  was  followed  by  a  howl  of  persecution  and  obloquy,  and 
even  by  oppression.     He  has   not,  it  is  true,  attacked  us,  but  he 
has  put  his  honor  upon  trial.     He  has  said  that  he  never  heard  of 
a  commonwealth's  attorney  calling  a  special  term  of  the  court  to 
try  a  murder  case.     Neither  have   I.     He  did  not  call  a  special 
term.     The   indecent  haste  of  which  he  speaks  was  the  indecent 
haste  of  his  honor.     He  referred  to  your  district  attorney  in  regard 
to  the  call  of  these  courts,  and  made  it  one  of  the  arguments  why 
you  should  acquit  this  prisoner,  but  that   call  was  made  by  the 
judge  of  this  court.     Neither  Colonel  Montfort,  nor  I,  nor  anybody 


614  MODERN  JURY  TRIALS. 

of  the  prosecution  had  anything  to  do  with  it.  And,  is  it  becom- 
ing, too,  that  an  argument  should  be  made  before  you  that  because 
the  judges  of  the  court  of  appeals  are  witnesses,  therefore,  you 
will  imagine,  in  some  mysterious  way,  that  a  conspiracy  exists,  and 
find  a  reason  for  acquitting  the  prisoner  ?  And  so  the  'gentleman 
complains  when  the  treasurer  of  the  state  obeyed  a  subpoena  of 
this  court,  and  when  the  clerk  of  the  court  of  appeals,  and  when 
the  members  of  the  police  force  of  Frankfort  obeyed,  as  was  their 
bounden  duty,  a  subpoena  of  this  court.  They  were  but  witnesses. 
Now,  gentlemen,  when  I  heard  my  young  brother's  speech,  it 
excited  mingled  feelings  of  admiration  and  regret.  When  he 
reaches  my  age,  I  will  not  say  my  experience,  he  will  find  out  that, 
if  for  no  higher  motive,  it  does  not  pay  to  denounce  witnesses,  to 
take  advantage  of  his  position  of  advocate  to  say  that  witnesses 
swore  falsely,  and  that  he  will  find  that  it  will  not  help  his  case. 
I  would  not  notice  it  were  he  not  a  man  of  talent  and  promise,  and 
one  upon  whom  a  comment  of  this  sort  will  not  be  wasted.  He 
will  find  that  hitting  at  witnesses  by  insinuation  of  improper 
motives  will  never  produce  its  effect,  and  that  attempts  to  belittle 
men  old  enough  to  be  his  father,  and  who  have  attained  an  emi- 
nence such  that  his  wildest  ambition  can  only  hope  to  have  his 
name  written  with  theirs,  is  not  only  unbecoming,  but  unprofitable. 
But,  laying  aside  his  unkind  insinuations,  there  are  some  points  of 
his  remarks  that  I  do  not  understand.  He  speaks  of  himself  as 
the  twilight,  and  some  one  else,  probably  Col.  Prall,  as  the  star- 
light, and  as  some  one  also,  most  likely  Col.  Thompson,  as  the 
moonlight,  and  of  the  distinguished  New  Yorker  as  the  broad  day- 
light. Now,  if  the  starlight  and  the  moonlight  and  the  daylight 
bear  any  just  proportion  to  the  length  of  the  twilight,  I  think  you 
gentlemen  will  not  have  a  chance  to  get  home  until  about  time  to 
cut  your  tobacco.  In  the  old  Grecian  mythology,  where  there  was 
some  doubt  as  to  where  the  souls  of  the  depai'ted  went,  some  were 
said  to  go  to  Hades,  some  to  the  Elysium  and  some,  as  to  whom 
it  was  doubtful  whether  they  deserved  reward  or  punishment,  went 
into  the  "  eternal  twilight  of  the  soul."  The  speech  of  my  young 
friend  did  not  quite  realize  this  "  eternal  twilight,"  though  some 
might  say  that  it  bade  fair  to  suggest  this  last  resort  of  departed 
souls  in  classic  times.  It  is  noticeable,  also,  and  well  known,  also, 
to  carry  out  the  simile,  that  those  things  which  were  plain  and  vis- 
ible, and  appeared  bright,  became  obscure  and  doubtful  in  the  dark- 
ness that  the  twilight  leaves  behind.  I  will  not,  for  so  kindly  is 
my  feeling  to  all  of  the  brethren  of  the  profession,  intimate  that 
the  like  result  followed  the  twilight  we  have  seen.  But  I  was 


BUFORD-ELLIOTT  CASE.  616 

itruck  with  the  way  my  young  brother  confused  the  testimony 
that  was  sworn  to  by  the  witnesses  and  that  which  he  gave  him- 
self. And  it  would  be  an  odd  result,  which  I  have  no  time  to 
analyze,  if  somebody  were  to  separate  that  which  was  the  testimony 
of  witnesses  and  that  which  he  gave  himself.  For  instance — if  I 
were  merely  to  illustrate — do  you  gentlemen  remember  any  witness 
that  testified  to  the  fact  that  poor  old  Ulysses  Turner,  whose  dark- 
ened eyesight  led  the  way  to  a  very  early  tomb,  ever  slandered  or 
ever  insulted  or  ever  did  aught  to  provoke  Col.  Buford,  save  the 
performance  of  his  duty  as  an  attorney  ?  Was  there  any  evidence 
here  that  Turner  was  guilty  of  any  act  except  that  he  was  the 
attorney  against  him  ;  that  he  was  assaulted  by  Col.  Buford,  and 
for  that  assault,  so  far  as  the  testimony  goes,  no  punishment  was 
ever  meted  out  to  him  ? 

What  are  the  facts,  I  have  no  right  to  say  to  you,  because  they 
are  not  proven.  But  that  which  my  friend  and  brother  says  is  not 
only  not  proven,  but  I  venture  the  assertion  is  not  only  incapable 
of  proof,  but  that  if  he  is  familiar  with  the  facts,  could  not  be 
established  by  proof. 

And  so  with  a  great  deal  of  what  he  has  said,  as  to  his  mode 
of  insinuating  unkind  and  improper  motives.  I  illustrate  his 
treatment  of  Dr.  Chipley.  I  am  not  the  man,  gentlemen  of 
the  jury,  to  pass  upon  the  merits  of  Dr.  Chipley.  The  rela- 
tion I  bear  to  him  would  not  permit  it,  for  I  have  been 
his  friend,  or  rather  he  was  my  friend  since  my  early  boyhood, 
and  my  family  and  his  family  have  borne  a  hereditary  friend- 
ship since  the  early  settlement  of  this  state  and  the  city  of 
Lexington.  I  was  raised  to  venerate  him,  and  I  have  learned  to 
love  and  admire  him.  Therefore  I  am  not  a  proper  person  to  eulo- 
gize him.  But  is  it  becoming  to  say  to  you  that  a  gentleman  of 
Dr.  Chipley's  age,  and  of  his  bearing  before  you,  may  swear  to 
that  which  is  untrue  ?  That  he  may  falsify  in  a  matter  so  impor- 
tant, because,  forsooth  he  eats  three  times  a  day  at  the  same  table 
with  the  counsel  for  the  prosecution  ?  That  because  Gen.  Rodman, 
Mr.  Montfort,  Dr.  Chipley  and  myself  have  the  privilege  of  dwell- 
ing in  a  family  so  pleasant,  and  that  we  enjoy,  after  the  labors  of 
the  day  are  over,  the  pleasant  converse  such  gentlemen  of  long 
mutual  acquaintance  can  enjoy  in  a  pleasant  family,  and  that, 
therefore,  because  he  happens  to  be  at  the  house  that  Rodman  and 
I  dwell  in,  because  he  walks  home  with  and  sits  opposite  Montfort, 
that  he  will — oh,  no;  my  young  brother  is  too  courteous  to  say 
that ;  not  that  he  is — no,  my  young  brother  is  too  fair  to  say  that 
he  is — but,  perchance,  he  might  insinuate  to  the  minds  of  the  jury 


6 16  MODERN  JURY  TRIALS. 

that  this  aged  and  distinguished  man  could  be  induced  to  swear  to 
that  which  otherwise  he  would  not  swear  to. 

And  he  utterly  mistakes  the  temper  of  the  prosecution,  KO  far  as 
I  represent  that  temper,  if  he  thinks  I  am  going  to  reflect  upon 
the  experts  who  have  testified  on  the  other  side  as  he"  has  done. 
If  I  can  not  argue  this  case  but  by  insinuating  improper  motives 
and  acts  to  venerable  men,  however  much  I  may  disagree  with 
them,  and  however  much  I  may  think  their  views  erroneous,  then, 
so  far  as  I  am  concerned,  let  your  verdict  be  against  the  views  I 
present.  Lawyer  as  I  am,  I  have  never  held,  and  I  pray  to  God 
that  I  may  never  hold,  that  the  right  of  advocacy  means  to  wound 
the  feelings,  or  to  injure  the  reputation,  or  to  smirch  the  charac- 
ters of  good  men,  who  by  the  commonwealth  are  called  to  the 
performance  of  a  most  disagreeable  duty.  I  recognize  no  such 
right  of  advocacy.  I  recognize  no  right  of  any  brother  of  the 
profession  to  say  aught  of  the  witnesses  other  than  he  would  be 
justified  in  saying  of  the  men  outside  of  the  court-house.  I  utterly 
repudiate  it  in  the  name  of  a  profession  that  I  love,  and  to  belong 
to  which  is  the  honor  of  my  life ;  for  which  no  temptation  has 
ever  been  sufficient  to  induce  me  for  a  moment  to  leave  it.  I 
protest  against  any  advocate  using  his  position  to  speak  disre- 
spectfully of  witnesses  who,  under  the  sanction  of  the  law, 
attempt  to  testify  to  the  truth. 

My  young  brother  winds  up  his  speech  with  a  peroration  that  is 
touching  and  handsome.  Amid  all  the  range  of  poetry  and  prose, 
amid  all  the  creations  of  genius,  there  is  hardly  any  picture  more 
striking,  hardly  any  creation  more  magnificent,  than  the  character 
of  Macbeth  as  drawn  by  the  great  seer.  It  was  an  apt  illustration, 
as  it  seemed  to  me,  that  my  learned  and  cultivated  brother  found 
in  some  of  the  closing  lines  put  in  the  mouth  of  that  great  char- 
acter and  that  he  has  used  upon  this  occasion.  Who  was  Macbeth? 
He  was  a  moral  monomaniac,  whose  sovereign  came  under  his 
roof,  and  who  took  advantage  of  his  sovereign  to  murder  him  in 
the  silent  watches  of  the  night.  And  the  soliloquy  is  the  soliloquy 
of  a  moral  maniac,  who,  having  murdered  his  sovereign,  usurped 
his  throne,  and  crowned  his  temples  with  the  crown  of  his  sover- 
eign, and,  after  that,  the  damned  spot  would  never  out,  and  my 
young,  learned  and  cultivated  brother  was  apt  in  his  illustration. 
The  diseased  mind  of  this  moral  maniac  only  fell  upon  him  when 
the  ghost  would  not  down.  It  was  the  ghost  of  the  murdered  that 
followed  him  in  all  the  life  that  came  after  that  time  ;  and  my 
young  friend  was  correct  when  he  said,  this  was  not  the  first 
slayer.  The  Macbeth  slaying  was  imaginary.  The  great  dram- 


feUFORfc-ELLIOTT  CASE.  617 

atist,  the  greatest  poet  and  seer,  outside  of  Holy  Writ,  created  this 
typical  murderer — this  murderer  who  had  all  the  graces  of  chiv- 
alry; this  murderer  who  had  all  the  arts  and  characteristics  of 
the  soldier  and  gentleman,  whose  lineage  was  lost  amid  the  myths 
of  tradition  ;  whose  career  was  crowned  with  the  laurels  of  bittle- 
fields  and  councils  ;  whose  graces  were  the  graces  of  the  knight 
of  the  tournament  as  well  as  of  the  soldier  of  the  battle-ax;  whose 
domestic  virtues  were  the  virtues  of  the  philosopher  and  the 
Christian  ;  who  amidst  temptations  that  overshadowed  his  past 
life ;  who  amidst  temptations  that  for  the  moment  lost  him  the 
control  of  his  will,  to  forget  his  loyalty  to  his  sovereign,  to  forget 
his  loyalty  to  his  own  high  character,  to  forget  his  courage,  to 
forget  his  hospitality,  and  in  his  own  house,  giving  his  opponent 
no  show,  slew  him.  And  the  mind  wavered  ;  then  the  spectre  of 
a  disordered  imagination  came  upon  him. 

My  learned  young  brother  set  before  you  the  typical  moral 
maniac  of  modern  jurisprudence.  He  is  the  very  type  of  the  man 
that  now  learned  experts  make  us  believe  are  maniacs.  He  is  the 
typical  man  of  civilization  and  of  history,  who  allowed  themselves, 
suddenly  overborne  by  temptation,  to  commit  crime ;  and  the 
annals  of  criminal  courts  are  crowded  with  the  men  of  whom 
Macbeth  was  the  loftiest  type  of  the  moral  maniac  that  is  presented 
to  you  to-day;  the  mania  which  acquits  criminals  in  this  era  is  that 
moral  mania  that  got  its  entrance  into  the  light  in  the  very  dawn 
of  history  and  found  its  first  type  in  the  first  murder ;  the  man 
who,  without  motive,  killed  the  man,  who,  in  the  very  beginning 
of  time,  before  there  was  aught  to  confuse  the  vision,  he  stands 
out  as  the  typical  criminal  of  all  time,  the  motiveless  criminal  who 
slew  his  brother.  There  were  no  tribunals  of  justice  ;  all  the 
world  might  be  his  judge.  And  he  had  hereditary  insanity,  too, 
because,  under  like  temptation,  his  mother,  from  whom  he  inherited 
his  nature,  by  plucking  down  the  apple,  with  insane  recklessness 
threw  a  world  away. 

I  feel  that  it  would  be  unnecessary  for  me  to  make  an  argument 
at  all  of  any  length  were  it  a  case  of  less  importance,  but  I  feel 
that  we  are  at  a  turning  point  in  the  history  of  jurisprudence  in 
Kentucky.  Perhaps  the  long,  long  lane  has  found  its  elbow,  and 
we  are  returning  toward  the  era  of  peace  and  order  and  safety  and 
quiet.  It  may  be  that  the  years  of  bloodshed,  of  trouble,  of 
anxiety,  the  years  in  which  hearts  have  been  broken  by  the  shed- 
ding of  blood,  in  which  crimes  have  been  so  long  unpunished,  are 
about  to  end,  and  that  your  verdict  may  be  the  turning  over  of  a 
new  page,  upon  which  will  be  written  a  brighter  history. 


618  MODERN  JURY  TRIALS. 

I  have  heard,  in  this  case,  a  great  deal  about  chivalry — of  the 
§cion  of  a  noble  family,  and  all  those  words  which  indicate  lofty 
qualities.  I  will  not  detract  one  word  of  all  that  may  be  said  of  the 
unfortunate  prisoner,  but  I  hail  the  coming  of  your  verdict  as  that 
era  when  the  highest  of  all  qualities,  the  most  chivalrous  of  all  char- 
acters, the  most  magnanimous  and  noble  of  all  lives,  will  be  obedi- 
ence to  the  law;  when  the  idea  that  the  strong  right  arm  and  the 
quick  temper,  and  that  desire  to  right  yourself  by  private  venge- 
ance, will  no  longer  be  considered  the  marks  of  noble  blood  and 
chivalrous  life,  but  submission  to  law,  patient  obedience  to  the 
demands  of  civil  society,  unquestioning  obedience  to  the  demands 
of  peaceful  life,  will  be  held  to  be  the  true  chivalry  of  the  true 
citizen;  so  that  hereafter  in  Kentucky  the  qualities  of  manhood 
which  have  marked  her  history,  her  courage,  her  magnanimity,  will 
be  shown  by  her  obedience  to  law — a  faithful  and  loyal  adherence 
to  civil  law — so  that  peace  may  dwell  in  our  houses,  and  the 
widows  may  give  way  to  the  wives  of  happiness.  And,  therefore, 
I  feel  that  it  is  not  too  much  to  add  any  efforts  of  mine  to  the 
accomplishment  of  such  a  verdict.  I  have  heard  a  great  deal  too 
much  about  insanity  in  this  case.  I  have  read  history  to  but  little 
purpose  if  I  did  not  know  that  there  are  certain  forms  of  civil  life 
and  of  action  which  seem  to  take  on,  for  the  time  being,  insanity 
that  are  merely  the  exaggerations  of  the  prevailing  temper  and  the 
spirit  of  the  times.  There  are  persons  who  are  so  affected  by  the 
circumambient  atmosphere,  by  the  spirit  that  surrounds  them,  that 
they  do  things  which  seem  to  be  almost  unaccountable  to  a  later 
generation  and  a  different  day,  and  we  account  them  somewhat 
insane.  Virgins  will  dress  themselves  in  spotless  garments  of 
white,  and,  hand  in  hand,  will,  with  songs  of  rejoicing,  walk  into 
the  waves  of  the  ebbing  sea,  because,  forsooth,  the  teaching  of  the 
Church  is  that  virginity  is  the  highest  of  all  recommendations  to 
Heaven.  A  Frenchman,  in  the  time  of  the  revolution,  will,  because 
Cato  and  other  Romans  committed  suicide,  open  the  veins  of  his 
arms  and  die  amidst  the  scent  of  roses  and  the  songs  of  sirens. 
******** 

Now,  with  these  few  principles  to  guide  us,  let  us  see  if  we  can 
find  our  way  through  the  labyrinths  of  this  testimony,  not  to 
inquire  what  each  one  of  them  has  said  as  to  this  man's  mind — the 
question  is  not  as  to  what  is  the  nature  of  this  man's  mind,  but  it 
reduces  itself  to  these  simple  propositions  :  At  the  time  John 
Elliott  received  in  his  heart  the  twelve  buckshot  put  into  that 
barrel  by  Thomas  Buford,  was  Thomas  Buford,  first,  of  such 
impaired  intellect  as  that  he  did  not  know  right  from  wrong;  that 


BUFORD-ELLIOTT  CASE,  619 

he  did  not  know  that  murder  was  wrong,  and  that  he  did  not  have 
control  of  himself.  This  control  does  not  mean  that  sort  of  control 
which  a  man  has  in  the  ordinary  affairs  of  life.  None  of  us  control 
ourselves.  Legal  insanity  does  not  mean  loss  of  the  control  of  our- 
selves from  any  other  thing  than  disease.  It  is  not  insanity  in  a 
father  who  slaps  his  child's  face  in  a  fit  of  passion;  many  a  good 
man  does  it.  Loss  of  self-control  by  anger  is  not  insanity.  Let 
me  put  a  case  to  you.  A  young  clerk  has  been  tempted  in  a  faro 
bank.  He  gambles  away'his  own  money,  and  in  his  pocket  he  has 
a  wad  of  his  employer's  money,  and  in  the  heat  of  that  passion, 
under  the  seductive  lights  and  temptations,  he  hesitates.  His  own 
money  is  gone.  I  do  not  know  that  I  am  sufficiently  familiar  with 
the  phrases  of  the  game,  but  he  has  a  plan  which  he  will  try.  He 
thinks  he  can  beat  the  "tiger"  on  a  plan  the  very  next  bet.  It 
only  requires  money  to  copper  the  ace  to  win.  He  has  none  of  his 
own  money — he  takes  his  employer's  money  in  his  hand.  The 
good  angel  whispers  it  is  not  his  own.  The  bad  angel  whispers 
that  it  is  only  a  temporary  loan.  All  the  temptations  of  the  place 
come  rushing  upon  him,  and  again  he  touches  the  money  and  again 
draws  back.  Then,  poor,  feeble  human  being  that  he  is,  he  takes 
the  money  out  and  puts  it  on  a  card,  and  money  and  heart  and 
reputation  are  lost,  and  lost  forever.  Now,  that  is  not  insanity 
He  has  lost  the  power  of  control ;  the  rudder  is  gone.  Shall  it  be 
said  that  it  follows  that  he  is  insane  ?  Thus  we  might  illustrate 
all  the  crimes  in  the  calendar.  The  young  fellow  who  taps  the  till 
the  murderer  who  slays  his  victim,  each  is  no  longer  under  the 
control  of  his  reason.  Not  because  that  reason  is  dethroned,  but 
because  each  has  become  more  violent  and  passion  is  uncontrolled. 
If  our  hearts  and  minds  were  wholly  under  control,  our  reasons 
even  and  just,  the  millenium  would  be  upon  us — the  Utopia  of 
philosophers,  the  Arcadia  of  poets.  When  these  temptations  and 
passions  are  indigenous  in  man,  why  need  I  speak  to  men  about 
such  things  ?  Our  lives  are  marked  by  milestones  of  resisted  and 
irresistible  temptations.  The  unseen  records  of  our  lives  are  writ- 
ten over  with  the  history  of  successful  or  unsuccessful  temptations. 
We  who  are  reaching  middle  life,  and  who  have  children  about  our 
knees,  know  how  the  battle  of  life  is  to  be,  because  we  have 
wrestled  with  these  identical  temptations,  but  we  are  not  insane — 
not  diseased.  We  are  responsible  to  God  and  to  man,  and  to  our 
own  consciences.  And  if  so — I  had  almost  said  trickery — with 
human  jurisprudence  and  human  life  to  attempt  to  make  this  moral 
insanity.  That  is  not  the  sort  of  loss  of  self-control — that  loss  of 
control  which  the  law  requires  as  the  result  of  disease.  It  is  when 


020  MODERN  JURY  TRIALS. 

a  man's  mind  has  become  impaired  by  disease;  it  is  when  the  brain 
and  will-power  have  ceased  to  operate  by  the  result  of  disease. 
There  is  a  great  difference  between  disease  and  an  outburst  of 
passion.  In  cases  of  insanity,  the  law  makes  no  difference  between 
good  and  bad,  between  the  law-abiding  and  the  lawless  man.  Why 
the  language  is  full  of  terms  describing  this  condition,  but  the 
insanity  of  the  law  is  the  insanity  of  disease.  Fifty-four  years  ago, 
in  the  county  of  Woodford,  and  in  one  of  the  most  beautiful  sec- 
tions of  the  whole  country — a  place  so  beautiful  that  it  may  be 
believed  that  God  created  it  with  a  smile,  and  the  smile  had  crys- 
talized  in  the  landscape — a  country  where  everything  is  lovely,  this 
man  was  born.  He  was  one  of  twelve  children.  I  do  not  know  if 
he  was  the  oldest,  or  the  youngest,  or  when  he  made  his  appear- 
ance. I  know  nothing  of  his  father,  except  what  this  proof 
developes.  I  have  heard,  but  I  know  nothing.  I  judge  from  what 
has  appeared  that  his  was  a  hospitable  Kentucky  family,  like  many 
another  that  we  all  know.  I  know  not  how  many  sons  his  father 
and  mother  had — how  numerous  his  connections  were  on  both  sides, 
but  we  all  know  in  the  history  of  Kentucky  and  acquaintances 
there  are  many  persons  of  that  name.  Now,  out  of  that  large  con- 
nection, it  is  proven  on  his  mother's  side  there  was  a  lady  who 
was  insane. 

Amid  all  the  numerous  Bufords  in  the  present  generation — in 
the  generation  that  succeeded  these  brothers — in  the  remote 
branches — we  hear  only  of  these  cases  that  I  have  cited,  together 
with  the  three  half-witted  children  of  a  cousin  whose  remoteness  or 
nearness  is  not  given.  No  man  on  this  jury  knows  how  close 
Abram  is  to  Gen.  Buford.  The  General  said  he  did  not  know.  He 
was  either  first  or  second  cousin  of  his  father.  How  many  other 
Bufords  out  of  this  connection,  out  of  this  family  of  twelve  or 
thirteen,  had  peculiarities,  we  do  not  know.  One  died  of  feve^ 
one  was  acquitted  of  insanity,  the  third  got  religion.  I  don't  know 
who  the  other  children  were.  We  see  a  specimen  of  this  family  in 
the  first  witness  for  the  defense.  This  magnificent  physique  and 
strong  and  vigorous  intellect,  the  brother  of  him  who  is  accused, 
for  whom  I  have  an  infinite  pity  that  passes  all  expression,  and  the 
other  brother,  a  fine  type  of  physical  manhood.  These  two  are 
specimens  of  a  stalwart,  healthful  and  vigorous  race.  There  are 
three  examples  of  hereditary  insanity.  Sinclair  was  guilty  in  1836, 
or  maybe  Francis  in  1836,  and  Sinclair  a  little  later;  and  Mrs. 
Allen's  case  occurred  many  years  ago.  This  we  learn  by  no  physi- 
cian's testimony,  nor  by  that  of  any  expert,  but  by  that  of  General 
Buford,  the  only  brother  absent  from  home  for  thirteen  years. 


BUFORD-ELLIOTT  CASE.  621 

Why  are  not  the  family  here — members  of  the  circle  present — and 
the  friends  and  relatives,  instead  of  getting  the  mere  neighbors 
here  to  testify  to  their  general  belief  concerning  these  persons  ?  If 
I  might  venture  the  inquiry,  suppose  any  one  of  those  persons  were 
on  trial  before  you  to-day  for  insanity,  with  the  purpose  of  taking 
from  them  their  estate,  and  appointing  for  them  counselors,  and 
sending  them  to  asylums,  would  you  convict  them?  It  would  look 
harsh.  Suppose  Mrs.  Allen,  who,  doubtless,  had  all  the  graces  and 
qualities  that  mark  their  family — suppose  she  was  on  trial  with  a 
design  of  taking  her  children  from  her  and  incarcerating  her  in  an 
asylum.  There  is  not  enough  proof  in  this  case  to  convict  her  of 
insanity.  Let,  us  trace  this  man's  career  further.  He  grows  to 
manhood.  We  know  nothing  of  his  childhood.  Growing  up  vig- 
orous, getting  a  good  education — for  it  is  said  that  he  was  well 
educated  and  intelligent — he  grows  up  without  notice  among  his 
people,  and  we  do  not  hear  of  him  until  the  year  1845  or  1846, 
when  the  first  revelation  of  his  peculiar  nature  is  that  he  is  a  man 
of  strong  passion;  that  he  gets  angry  and  threatens  to  whip  some- 
body who  treads  on  a  dog.  Is  that  insanity  ?  The  people  who  go 
to  barbecues  and  elections  and  make  a  disturbance — the  men  who 
come  into  town  and  make  it  not  only  a  little  exciting,  but  a  little 
dangerous.  Are  these  men  insane?  And  then  concerning  this 
man,  we  hear  a  little  more  from  time  to  time.  As  living  in  his 
county  and  performing  business  duties,  by  becoming  administrator, 
or  in  some  way  taking  charge  of  his  father's  estate.  The  proof 
does  not  exactly  develop  how,  or  at  least  I  do  not  remember  it.  A 
farmer  in  the  county,  you  hear  of  him  in  a  difficulty  on  the  Fair 
grounds  at  Lexington,  exhibiting  there  a  certain  calm  and  cold 
courage,  and  the  power  of  having  the  whole  of  his  faculties  about 
him,  even  when  fired  upon.  And  then  the  next  thing  we  hear  is, 
that  lie  is  getting  into  pecuniary  difficulties,  and  he  is  being  sued, 
and  the  suit  annoys  him;  and  then  we  hear  of  him  assaulting  the 
lawyer — whipping  the  lawyer  because  the  suit  went  against  him; 
or,  as  Sam  Wallace  says,  "  he  was  violent  in  his  law-suits  and  per- 
sonal resentments."  It  is  not  evidence  of  insanity,  but  evidence  of 
angry  and  unrestrained  passions.  It  is  evidence  of  the  estimation 
in  which  he  held  his  personal  honor;  not  of  the  high  desire  to  be 
held  stainless  in  business  transactions;  not  that  honor  which  pre- 
fers another  to  yourself,  that  makes  one  liberal  in  one's  feelings 
with  everybody  else,  and  is  only  strict  with  one's  self;  but  the 
honor  that  resents  with  blood  a  tread  upon  your  corns;  that  resents 
it  a*  an  injury  if  a  man  does  not  smile  in  your  face,  and  demands 


622  MODERN  JURY  TRIALS. 

that  he  is  to  be  killed  or  driven  from  the  community  by  the  man 
whom  he  has  insulted. 

It  is  with  regard  to  this  kind  of  personal  honor  that  we  hear  oi 
him.  Now  we  know  nothing  about  that  assault  except,  that  it 
occurred.  There  was  nothing  said  except  that  he  assaulted 
Ulysses  Turner,  the  lawyer.  The  proof  does  not  say  whether  he 
was  punished  or  not.  I  know  not.  It  is  not  in  the  proof.  The 
next  thing  we  hear  of  this  man  is  running  for  the  legislature. 

He  was  defeated,  but  he  ran  vigorously.  The  very  gentlemen 
here  to  prove  that  he  was  peculiar  supported  him.  He  stumped 
the  county ;  explained  matters  in  dispute  before  the  people. 
After  two  or  three  years  the  gentleman  sells  out  his  property  and 
removes  to  the  county  of  Henry,  where  he  buys  a  farm.  The  testi- 
mony shows  that  he  owned  an  interest  in  the  farm  at  Pleasure- 
ville,  and  that  the  title  was  in  the  name  of  his  sister.  We  do  not 
know  where  the  money  came  from.  He  purchased  400  acres  for 
$32,000  or  $34,000.  He  buys  in  flush  times.  The  title  is  thought 
to  be  defective.  A  lawsuit  was  instituted,  and  it  was  held  by  the 
court  that  it  had  no  merit  in  it.  The  court  decided  that  the  title 
was  one  that  should  have  been  accepted.  Is  this  enough  to  make  a 
hero  of  a  man  ?  It  is  one  of  the  commonest  transactions  all  over 
Kentucky  to  buy  more  than  can  be  paid  for.  In  flush  times,  when 
everybody  was  making  money,  men  bought  land  and  paid  for  it  in 
part.  Then  came  the  shrinkage,  and  the  old  order  of  things  began 
to  have  sway.  Such  men  became  burdened  with  debt  by  the  hard 
times  that  followed.  How  many  of  us  know,  personally,  what  it 
means  to  get  into  debt  for  homes  when  land  was  worth  $100  an 
acre,  and  having  to  pay  for  it  out  of  the  sweat  of  our  brows  when 
it  is  worth  only  fifty  dollars  !  These  are  things  which  in  this  con- 
test of  money  against  labor  we  all  have  seen.  The  men  who 
wanted  their  money  on  that  land  were  not  frauds.  I  do  not  know 
them,  and  I  confess  it  seems  to  me  that  this  web  of  romance  and 
mystery  is  utterly  confounded  in  the  testimony,  and  I  desire  to 
remove  it,  so  that  we  may  see  it  as  it  is.  He  buys  a  $32,000  farm, 
pays  $22,000  upon  it,  his  notes  fall  due,  the  vendor  brings  suit, 
times  change,  interest  runs  on,  accumulating  for  ten  years,  pur- 
chaser gathers  the  crops,  but  thinks  it  hard  that  he  should  be 
forced  to  pay  the  balance  due.  Is  it  strange  or  unreasonable  that 
the  creditor  should  complain  ?  How  many  such  transactions  occur 
in  every  community?  I  know  how  private  debt  has  been  like  an 
incubus  upon  us.  But  is  this  cause  for  insanity  ? 

Are  you  prepared  to  say  that  the  debtor  who  makes  an  improvi- 
dent debt  and  has  to  pay  it,  having  bought  at  a  high  price  and 


BUFORD-ELLIOTT  CASE.  62? 

forced  to  sell  low,  should  take  the  life  of  a  judge,  kill  the  court 
for  declaring  that  the  debt  must  be  paid  and  the  law  enforced,  and 
that  this  is  moral  insanity  ?  I  do  not  believe  that  the  jury  will  do 
this  unless  forced  to  do  it. 

Now  we  hear  a  great  deal  of  the  robbery  of  his  sister  and  her 
assassination.  I  do  not  mean  to  say  anything  offensive  to  any  wit- 
ness. Ten  years  have  passed  away,  and  this  great  tragedy  is  com- 
mitted.  These  peculiarities  are  magnified  by  the  tender  sympathies 
of  friends — made  much  of — mountains  gathered  from  mole-hills. 
And  these  witnesses,  whose  attention  is  called  to  them  and  to  no 
others,  all  else  being  kept  in  the  back  ground,  his  mode  of  doing 
business,  thriftiness  in  other  matters — only  these  things  subtracted 
from  the  remainder  of  his  life,  and  how  small  a  part  of  the  fifteen 
years  does  it  make.  Here  are  forty-five  persons,  witnesses  that  he 
has  talked  to  out  of  all  the  multitudes  he  has  addressed,  who  recol- 
lect probably  two  or  three  conversations  each,  but  some  only  one, 
and  these  conversations  were  always  hopeful.  He  believed  he  was 
going  to  win  his  suit.  This  being  so,  how  could  he  talk  of  the 
robbery  of  his  sister  ?  She  died  when  it  had  been  decided  in  his 
favor — when  no  robbery  had  been  accomplished.  That  Colonel 
Buford  talked  excitedly  is  true.  That  he  may  have  been  under  the 
influence  of  liquor  is  probable,  though  some  say  that  he  is  a  tem- 
perate man.  I  have  heard  much  about  his  affection  for  his  sister, 
but  there  is  one  single  thought  that  sheds  a  ray  of  light  upon  that 
love.  You  recollect  the  old  man  who  kept  the  cemetery.  He  said 
the  sister's  grave  was  not  only  unmarked,  but  that  to  this  brother 
it  was  an  unknown  grave  ;  that  he  came  to  him  and  asked  him  to 
show  him  where  his  sister  lay,  and  that  during  the  time  that  he 
loved  his  sister  so  well  he  never  visited  her  grave,  and  had  actually 
forgotten  the  place  where  she  lay.  Now,  it  is  a  fact  that  the  sane 
and  insane  are  alike  in  their  love  for  the  abode  of  the  dead  ;  that 
they  do  not  cease  to  be  dear  to  us  when  laid  in  their  resting  place. 
It  is  one  of  the  signs  of  insanity  that  the  really  insane  are  not  to 
be  turned  from  the  graves  of  those  they  love,  while  the  sane, 
returning  to  the  tide  of  human  affairs,  are  separated  from  them 
to  a  great  extent.  And  the  suicides  that  have  been  committed 
because  of  the  dead  have  been  more  often  committed  on  their 
graves  than  anywhere  else.  Amid  its  sorrows  they  commit  suicide, 
which  shows  that  they  can  no  longer  live  separated  by  the  grave 
from  those  they  love.  It  is  the  sane  who  turn  to  the  affairs  of  life, 
who  become  absorbed  in  sowing  and  reaping,  in  lecturing  to  socie- 
ties, in  running  for  the  legislature,  who  are  ambitious  and  thrifty, 
who  leave  the  graves  of  those  they  loved  unmarked,  and  forget 


624  MODERN  JURY  TRIALS 

where  the  loved  one  lies.  I  do  not  mean  to  say  that  Buford  did 
not  love  his  sister.  I  mean  to  say  that  the  love  he  bore  her  wa= 
the  same  controllable  affection  we  all  have  who  are  sane.  It  was 
not  the  romantic,  inexplicable  love  of  an  unsound  mind, 

********** 

There  may  be  an  impression  that  a  man  can  deliver  speeches  on 
the  spur  of  the  moment.  This  is  not  so.  Men  who  speak  accept- 
ably are  men  who  labor.  They  read  and  study.  Now,  this  gen- 
tleman, for  two  years,  spoke  acceptably  upon  a  variety  of  subjects. 
To  do  this  he  had  to  read,  analyze  and  exercise  all  the  faculties  of 
the  intellect.  He  had  to  exercise  his  mind  as  to  what  was  best  to 
be  said  and  reject  that  which  should  be  unsaid.  And  you  tell  me 
that  the  man  who  does  this  for  years  is  insane  ?  But  this  is  not 
all.  While  he  was  delivering  these  lectures  through  the  commu- 
nity, and  he  was  invited  to  do  so  by  his  fellow-citizens,  he  also 
played  chess  in  Eminence  and  in  Pleasureville,  and  was  prominently 
connected  with  the  business  transactions  of  the  county.  He  was  a 
leading,  active,  vigorous,  intelligent  citizen,  discharging  all  the 
duties  of  life  around  him  in  a  manner  that  made  him  respectable 
and  influential.  This  man  rode  upon  his  horse  talking  and  ges- 
ticulating— and  I  doubt  whether  there  is  a  man  in  the  sound  of 
my  voice  that  does  not  talk  to  himself — said  Mr.  Mont  fort.  If  I 
am  by  myself,  I  can  choose  my  company,  and  always  talk  to 
myself.  It  is  known  that  two  of  the  greatest  orators  in  American 
history  are  Patrick  Henry  and  Henry  Clay.  They  rarely  wrote 
their  speeches,  but  composed  them  by  walking  up  and  down  and 
Bpeakinjr  to  the  air.  There  is  a  walk  in  Lexington  owned  by  the 
Kentucky  university,  where  Henry  Clay  walked  up  and  down, 
deliberating  those  great  speeches  that  shook  the  world  and 
cemented  the  Union.  The  speeches  of  Patrick  Henry  were  made 
in  the  forests  of  Virginia,  where  he  gesticulated  and  talked  at  the 
top  of  his  voice,  the  neighbors  often  listening  to  those  great  sen- 
tences that  fired  the  hearts  of  the  people.  We  adapt  our  habits 
to  the  people  with  whom  we  associate.  Now,  you  recollect  that 
Col.  Buford  is  a  bachelor,  and  it  is  a  generally  accepted  theory 
that  nobody  can  live  to  fifty  years  of  age  without  contracting 
habits  of  life  which  are  peculiar  to  himself.  We  who  are  fortu- 
nate enough  to  marry,  and  to  marry  happily,  have  a  constant  out- 
side pressure  upon  us.  We  are  surrounded  by  influences  that 
break  in  upon  any  tendency  to  peculiar  habits.  We  are  brought 
within  the  range  of  domestic  influences  of  a  general  and  diversi- 
fied character. 

Now,  this  man  is  brought  up  in  this  way,  and  he  comes  to  the 


BUFORD-ELLIOTT  CASE.  625 

year  1878.     He  loses  his  suit.     He  has  been  a  violent  man  in  some 
respects.     Along  during  this  twenty  or  twenty-five  years  there  is 
another  series  of  events  that  have  transpired.     He  lives  in  Ken- 
tucky; is  surrounded  by  Kentucky  influences;  he  reads  Kentucky 
newspapers;  he  goes  to  Kentucky  court-houses.     There  he  finds 
the  law — the  criminal  jurisprudence — powerless.     And,  gentlemen, 
of  all  things  that  are  weak,  the  weakest  is  the   criminal  law  of 
Kentucky.     Of  all  things  that  are  contemptible,  the  expression  of 
the  criminal  law  of  Kentucky  is  the  most  contemptible.     And  so 
this  man  with  his  passions  growing,  living  his  bachelor  life,  and 
disappointed  in  that  life.     His  passions  grow  because  uncontrolled. 
He  finds  that  there  are  men  around  him  humbler  than  he — men 
who  are  not  the  scions  of  honorable  families.     He  finds  the  law 
powerless,  and  he  feels  that  so  far  as  this  life  is  concerned,  that 
there  is  little  or   no   punishment   for  the  criminal.     Well,  these 
things  go  on,  and  the  law  decides  against  him  in  the  lower  court, 
and  the  sheriff  comes  to  put  him  off.     Now,  bear  in  mind,  this  is 
an  insane  man.     Let  us  see  what  he  does.     We  have  gotten  to  the 
point  where — according  to  my  venerable  and  learned  brother,  Dr. 
Kennedy — an  explosion  would  be  produced.     Now,  I  am  frank  to 
say  that  I  do  not  know  what  he  means  by  an  "  explosion,"  but  at 
any  rate  he  says  it  would  produce  an  explosion,  and  an  explosion 
is  generally  understood  to  be  a   plowing  to  pieces.     Well,  now, 
this  thing  happens;  the  sheriff  goes  to  put  him  off.     Let  us  see  if 
he  goes  to  pieces.     As  I  say,  he  loses  his  case  in  the  Fayette  circuit 
court,  and  a  writ  of  possession  is  put  in  the  hands  of  the  sheriff. 
The  sheriff  goes  there,  and  what  does    he  do  ?     He   says    to  the 
sheriff,  "Don't  take  these  things  away  to-day;  I  will  go  to  Frank- 
fort and  see  my  lawyer,  and  see  what  I  can  do  about  it."     The 
sheriff  says  —  the  sheriff  at  whom    my  brother   sneers;    but   my 
brother  seems  to  think  that  being  an  officer  of  the  commonwealth 
and  a  witness  for  the  prosecution  is  sufficient  grounds  for  doubt- 
ing his  honesty — the  sheriff  says:  "Certainly,  Col.  Buford,  I  will 
give  you  time."      Well,  he  goes   to  Frankfort   and   comes  back 
without  doing  anything;  and  when  the  sheriff  goes  there  again  he 
says:    "Don't   execute  the  writ;    I   have  made  arrangements  to 
gi-ve  bond."     But  he  don't.     The  sheriff  goes  back,  and  he  says  : 
"  Wait ;  I  will  consult  my  lawyer."     He  then  goes  back  and  tries 
to  get  a  supersedeas  bond,  having  said  to  the  sheriff,  "I  will  make 
arrangements  to  give  a  supersedeas  bond.     Then  the  sheriff  comes 
again,  and  he  says  :  "Don't  turn  me  out  ;  it  is  inconvenient  to  my 
sister,  and  if  you  will  not  turn  me  out  until  next  Monday  week 
i  will   give  you  my  word   and   honor    as  a    gentleman    I  will  go 
40 


626  MODERN  JURY  TRIAL& 

out."  The  sheriff  replies:  "Certainly,  Colonel,  if  you  give  me 
your  word  and  honor  ; "  so  he  gave  the  sheriff  his  word  and  honor. 
Well  Col.  Buford  does  not  execute  his  bond,  and  he  does  not  go 
out.  Now,  it  may  be  argued  that  because  he  did  not  go  out 
according  to  his  word  and  honor  given  that  he  was  a  crazy  man. 
But  I  hardly  think  that  in  this  great  state  of  Kentucky  it  is  a 
symptom  of  insanity  that  a  man  does  not  keep  his  word  every 
time.  That  would  be  carrying  a  joke  too  far,  to  say  that  every 
man  who  does  not  keep  his  word  should  be  acquitted  of  murder 
on  the  ground  of  moral  insanity.  I  am  rather  of  the  opinion 
expressed  by  the  old  English  judge,  that  it  is  necessary  to  know 
the  amount  of  insanity  required  to  make  a  man  liable.  That  is 
drawing  the  line  a  little  too  fine,  putting  a  man's  life  at  the 
mercy  of  every  gentleman  who  does  not  execute  his  promise. 
It  makes  the  percentage  of  gentlemen  entirely  too  large.  Well, 
he  does  not  execute  the  bond,  and  so  the  sheriff  meets  him  and 
rides  with  him  to  his  house.  There  is  no  sign  of  insanity  shown 
then — no  peculiarity,  and  no  anger.  When  he  gets  to  the  house, 
he  goes  in  and  gets  his  double-barreled  shot-gun.  Then  he 
explodes,  according  to  the  theory  of  Dr.  Kennedy. 

He  says  to  the  sheriff :  "  You  and  your  son  had  better  get  out 
of  here.  I  am  not  going  to  move  out,  and  I  will  die  in  the 
attempt  to  remain." 

Up  to  this  point  there  is  certainly  no  sign  of  insanity,  until 
the  sheriff  appears  with  his  posse  comitatus,  and  Buford  says 
"I  will  die  first." 

Now,  gentlemen,  if  yon  will  go  to  the  mountains  of  North  Caro- 
lina or  Georgia — I  won't  say  Kentucky — but  I  think  if  you  would 
go  to  some  of  the  moonshine  districts  in  this  state,  where  the 
moonshine  dew  is  distilled,  you  will  find  the  attempt  of  a  United 
States  marshal  to  execute  his  duty  as  much  as  his  life  is  worth.  It 
may  seem  strange  and  unaccountable  to  you,  but  it  is  a  fact  that 
no  man  runs  for  the  office  of  deputy  marshal  in  those  districts. 

Gentlemen,  that  is  not  insanity;  it  is  lawlessness.  The  law  has 
been  for  twenty-five  years  growing  more  and  more  powerless; 
that  law  which  has  been  acquitting  men  of  deeds  of  violence;  that 
law  which  has  made  Kentucky  a  by-word  all  over  this  land. 

The  defense  say  that  he  was  a  lunatic,  and  could  not  control 
himself.  Did  not  he  control  himself  when  he  made  that  contract  ? 
Did  not  he  know  what  he  was  doing  ?  Gentlemen,  he  did  control 
himself,  and  the  court  of  appeals  decided  against  him,  and  he  went 
out.  He  went  to  Frankfort.  Now,  mind  you,  the  time  for  another 
explosion  had  come ;  he  had  exploded  one.  The  time  had  come 


BUFORD-ELLIOTT  CASE.  627 

for  him  to  execute  the  contract.  He  executed  it,  and  then  he 
went  to  Frankfort  and  filed  his  petition  for  a  rehearing,  and  it  was 
granted.  Now,  this  state  of  facts  presents  one  curious  question  to 
you.  Here  is  a  gentleman  who  is  insane,  whose  insanity  is  imme- 
diately cured  by  his  petition  for  a  rehearing  being  granted.  Now 
he's  sane,  and  now  he's  insane;  and,  gentlemen,  insanity  is  a  dis- 
ease of  the  brain,  and  you  might  as  well  talk  of  a  consumptive 
having  sound  lungs  as  a  man  being  insane  with  a  sound  brain. 
Here  is  a  man  who  is  perfectly  sane  when  his  lawyer  got  a  petition 
for  a  rehearing  for  him;  but  when  the  case  was  decided  against  him 
first,  what  does  he  do  ?  He  goes  up  armed  to  Frankfort  to  board 
there.  His  lawyers  file  a  petition  for  a  rehearing,  and  when  that  peti- 
tion is  granted  what  does  he  do  ?  He  associates  himself  with  Tom 
Jones.  He  plays  cards  with  Tom  Jones,  a  very  good  player.  I  don't 
know  how  good,  but  I  know  when  his  honor,  Judge  McManama. 
asked  him  if  he  was  a  good  player,  he  replied,  "I  am  good  enough 
to  beat  you."  I  don't  know  how  good  that  is,  but  if  his  honor  knows 
as  much  about  cards  as  he  does  about  law,  he  is  a  most  excellent 
player,  and  if  he  runs  cards  as  well  as  he  does  a  lawsuit,  he  is  a 
pretty  hard  man  to  beat.  But,  at  any  rate,  Buford  plays  cards, 
goes  fishing,  is  agreeable  to  the  ladies,  and  associates  himself  with 
Dick  Tate.  Now,  it  is  true  Mr.  Tate  is  the  treasurer  of  the  state, 
and  may  not  be  believed.  My  young  brother  seems  to  think  that 
all  that  is  necessary  to  prevent  a  fellow  from  telling  the  truth  is  to 
be  an  officer  of  the  state,  from  the  governor  down,  although,  by 
the  way,  I  don't  know  what  the  governor  has  done.  All  that  he 
did  was  that,  as  soon  as  this  tragedy  took  place,  he  called  out  the 
militia  to  protect  this  man  by  the  arm  of  the  law  from  violence, 
and  he  said  that  whatever  this  crime  has  been — whether  a  crime  or 
not — he  must  have  the  advantage  of  law.  For  myself,  I  am  frank 
to  say  that  it  should  be  a  matter  of  congratulation  with  the 
accused  and  his  counsel,  as  well  as  all  good  citizens,  that  in  the 
midst  of  the  public  indignation,  when  at  the  perpetration  of  such 
an  outrage  mob  law  might  have  taken  place,  the  governor  pre- 
vented that  stain  being  put  on  the  escutcheon  of  Kentucky,  and 
said  that  this  man  should  be  tried  like  any  other  citizen  at  the  bar 
of  the  circuit  court,  just  as  if  the  man  killed  had  been  the  humblest 
citizen  of  the  commonwealth. 

******** 

I  ask  you,  gentlemen  of  the  jury,  where  you  would  go  to  find 

the  criminal.     Suppose  that  on  the  Monday  of  his  walk  around  the 

penitentiary,  deliberating  whether  to  kill  Pryor  or  not,  he  had  met 

Elliott  by  himself,  and  with  no  other  eye  but  the  eye  of  God  to 


628  MODERN  JURY  TRIALa 

witness  the  same,  he  had  put  these  twelve  buckshot  into  the  heart 
of  that  upright,  loyal  judge,  and  then  had  gone  off  and  put  hia 
gun  where  it  could  not  be  found,  and  that  the  body  was  found 
with  the  charge  of  buckshot  in  it,  would  any  man  doubt, where  the 
man  that  committed  the  murder  could  be  found?  It  was  the 
result  not  of  insanity,  but  of  the  premeditated  determination.  Then 
that  brings  us  to  the  time.  The  law  says  "  at  the  time,' '  on  Satur- 
day (that  the  opinion  was  rendered  on  Monday),  that  gun  was 
loaded  for  the  purpose  of  killing  Judge  Pryor,  who  had  decided  the 
case,  and  this  man  started  out  to  find  Judge  Pryor.  Dr.  Bell  says 
that  in  this  whole  case  he  can  find  no  evidence  of  intellectual  insan- 
ity. This  man  knew  what  murder  was.  This  man  knew  right 
from  wrong.  This  man  had  educated  his  fellow-citizens  on  the 
stump  and  the  rostrum  and  in  the  lecture-room.  He  himself  was 
deeply  read.  Now  he  starts  out  to  find  Pryor,  and  he  would  kill 
Pryor.  If  he  had  killed  Pryor  the  argument  would  be  just  the 
same,  that  he  could  not  control  himself.  If  he  had  met  Pryor  he 
would  have  shot  him.  We  know  he  could  control  himself,  because 
he  told  us  the  operations  of  his  intellect.  He  says  :  "  I  went  and 
thought  about  the  matter ;  I  thought  Pryor  had  a  house  full  of 
children  who  had  done  me  no  harm,  and  for  their  sake  I  will  save 
him."  The  intellect  is  composed  of  two  qualities,  so  far  as  we 
know — the  power  to  conceive  and  the  power  to  execute;  the  power 
to  make  up  plans  and  the  power  to  choose  between  plans.  The 
power  to  conceive  was  shown  by  his  purpose  to  kill  Pryor  ;  the 
power  to  choose  was  shown  by  his  determination  not  to  kill  Pryor. 
******** 

He  told  Sneed  that  after  his  interview  with  Gofer  he  determined 
to  do  what  he  had  done — to  kill  Elliott.  He  took  the  walk  and 
made  that  determination.  He  gave  that  umbrella  back;  he  went 
into  Campbell  Steel's  room,  and  no  insanity  was  discovered;  talked 
to  Sam  Cox.  He  said  to  Steel — now,  mind  you,  he  had  determined 
to  kill  Elliott — he  said:  "Make  up  your  bill  against  me  up  to-day, 
and  I  will  pay  it;"  and  here  he  showed  forth  his  reason  and  his 
memory.  "I  think,"  said  he,  "I  owe  you  about  forty-one  dollars." 

Gentlemen,  the  details  of  this  tragedy  are  as  marked,  and  are  as 
cool  as  any  tragedy  that  ever  occurred,  and  if  preparation  and  cool- 
ness and  deliberation  are  any  marks  of  crime,  you  track  it  through 
that  whole  morning  when  he  wrote  that  letter  he  showed  his  rea- 
son. Pie  said:  "I  am  about  to  do  a  thing  in  which  I  may  lose  my 
life,  and  I  make  this  my  last  will."  John  Elliott  was  known  to  be 
a  brave  man.  His  life  was  one  long  exhibition  of  physical  and 
moral  courage,  a  life  of  uprightness  from  his  mother's  knee  until 


BUFORD-ELLIOTT  CASE.  629 

his  body  was  returned  to  mother  earth;  a  man  who  had  faced  the 
dangers  of  life  on  the  battle-field  and  had  filled  every  position  of 
life  from  the  humblest  that  an  humble  man  could  fill,  to  the  high- 
est that  a  gratified  state  could  put  on  him,  and  so  Buford  felt  that 
something  might  happen  to  him;  he  might  think  that,  in  the  ren- 
conter,  some  accident  might  befall  him;  that  Providence  might 
interfere,  and  that  old  maxim  that  the  ''biter  is  sometimes  bit" 
might  find  an  example,  and  so  he  therefore  put  it,  "Whatever  may 
happen  to  me."  Or  he  might  have  thought  that  the  death  of  such 
a  man,  that  a  tragedy  so  awful,  a  crime  so  conspicuous,  might  be 
followed  by  summary  retribution;  for,  in  this  state  of  Kentucky, 
while  the  law  was  powerless,  while  juries  brought  in  verdicts  of 
acquittal,  criminals  sent  out  of  court-rooms  without  punishment, 
were  sometimes  hung  by  mobs;  while  the  law  is  feeble,  the  hand 
of  vengeance  is  sometimes  strong.  The  very  bridge  at  Frankfort 
has  sometimes  had  criminals  hung  from  its  beams,  and  in  Henry 
county,  next  to  it,  and  in  Owen  county,  on  one  side  of  it,  and  in 
Shelby,  on  the  other  side  of  it,  there  have  been  mobs,  who,  after 
the  law  had  proved  powerless  and  crime  had  gone  stalking  through 
the  land  unpunished,  had  taken  the  law  into  their  own  hands  and 
hung  the  victims.  He  might  well  believe  that  if  he  committed 
such  a  tragedy  he  would  be  punished  out  of  hand  at  once. 

Insanity  is  a  disease;  and  here  we  have  the  spectacle  of  a  man 
who,  at  nine  o'clock  in  the  morning,  sane  or  insane,  not  according 
to  the  internal  workings,  but  by  external  communications;  here  is 
a  man  who  could  be  sane  or  insane  in  three  minutes;  sane  or  insane, 
as  he  goes  out  of  Gofer's  house,  not  according  to  disease  as  he  went 
in,  but  according  to  the  communication  that  Gofer  would  make  to 
him. 

Gentlemen,  there  is  not  a  paper  that  is  laid  on  the  table  of  any 
reading  man  that  does  not  contain  the  history  of  crimes  committed 
having  the  insanity  of  the  criminal  as  their  defense.  A  man  goes 
to  a  beautiful  woman  and  asks  her  to  be  his  wife,  and  says  to  her, 
"Come  to  my  arms,  my  own  stricken  deer,"  and  she  refuses;  and 
he  immediately  makes  a  stricken  deer  of  her,  by  shooting  her_ 
This  has  got  to  be  so  common  that  I  am  often  very  glad  that  I  am 
not  a  beautiful  woman  and  a  poor  woman,  who  is  not  as  pretty  as 
some  other  woman,  her  beauty  gone  by  the  cruelties  of  some  brutal 
man,  who  wants  to  get  rid  of  her,  and  he  gives  her  arsenic.  These 
men,  they  say,  are  morally  insane.  The  papers  are  full  of  this  sort 
of  insanity;  just  insane  enough  to  execute  the  promptings  of  their 
evil  hearts  and  gratify  their  passions,  or  ambition,  or  desire,  or 
purpose.  Now,  then,  when  Buford  went  into  his  room,  after  hav 


630  MODERN  JURY  TRIALS. 

ing  talked  with  Gofer,  and  after  having  made  the  resolution,  as  he 
said  to  Sneed,  he  writes  this  letter,  and  he  goes  out,  and  we  follow 
him  step  by  step  to  the  tragedy.  After  he  goes  out,  he  meets  Cox 
down  town  somewhere,  and  he  talks  about  going  to  Henry  county; 
he  talks  to  Steel,  and  in  a  few  minutes  Duvall  comes  along,  and  in 
that  manner  of  his  Buford  said  that  Socrates,  before  drinking  the 
hemlock,  said  there  was  nothing  so  desirable  to  his  heart  as  to  pre- 
serve his  personal  honor.  Duvall  said  he  was  a  great  fool  in  the 
state  of  Kentucky,  to  take  that  when  he  could  get  good  Bourbon. 

Col.  Breckenridge  then  proceeded  to  detail  all  of  Buford's  move- 
ments from  the  time  he  rose  on  the  fatal  morning,  until  he  met 
Judge  Elliott  at  the  ladies'  entrance  to  the  hotel,  and  killed  him, 
and  said: 

Gentlemen,  I  say  to  you  that  if  I  could  bring  the  body  of  the 
dead  judge  before  you,  with  his  slayer  gazing  on  that  kindly  face, 
I  would  appeal  to  you  for  your  duty.  Kentucky  comes  and  asks 
you  that  you  will  do  justice,  and  justice  that  will  be  a  lesson  for- 
ever. Two  hundred  years  have  passed  since  a  judge's  life  was 
taken.  Kentucky  comes  and  asks  of  you  such  an  example  that  two 
hundred  years  more  shall  pass;  she  comes  and  says  to  you,  "I 
want  the  law  to  protect  the  ministers  of  the  law;  I  want  the  juries 
to  see  to  it  that  the  law  is  ample  to  protect  my  servants  and  your 
servants;  I  want  an  honest  and  intelligent  jury,  gathered  from  the 
body  of  the  community,  to  stamp  with  their  verdict  the  pleas  of 
maudlin  sentimentality,  of  infected  philosophy  that  a  man  who 
commits  crime  is  insane.  In  the  name  of  your  consciences,  as  God 
gives  you  strength,  do  your  duty,  your  whole  duty,  your  full  duty, 
and  if,  by  doing  it,  this  man's  life  falls  a  victim,  if  the  verdict 
which  your  consciences  require  you  to  give,  takes  from  him  that 
life,  he  will  at  least  owe  you  what  he  did  not  give  his  victim.  He 
will  owe  time  to  you  in  which  he  can  make  peace  with  God,  and  by 
that  death  retrieve  the  death  which  he  inflicted  upon  a  judge,  and 
may  God  give  you  strength  to  do  the  right. 

• 

JUDGE    CURTIS,    FOR   THE    DEFENSE. 

Ex-Judge  GEO.  M.  CURTIS,  senior  counsel  for  the  defense,  is 
now  about  thirty-eight;  well  built,  above  the  medium  height;  with 
broad  shoulders,  large  forehead,  and  smoothly  shaven  features, 
like  Napoleon  Bonaparte,  whose  likeness  he  strikingly  resembles 
His  eyes  are  black,  and  hair  the  same,  fast  turning  gray;  his  voice 
is  pleasant  and  persuasive.  He  has  been  a  member  of  the  New 
York  Legislature,  and  served  on  its  judiciary  committee  at  the  early 
age  of  twenty-one;  was  six  years  Jadge  of  the  Marine  Court  of  New 


BUPORD-ELLIOTT  CASE.  631 

York  city,  and  declined  a  nomination  to  the  Superior  Court,  other 
positions,  and  for  Congress,  (the  last  a  happy  thought).  He  is 
sounsel  in  the  famous  Leslie  will  case,  involving  a  million  or  more 
of  money;  was  attorney  for  Helmbold  in  Philadelphia,  in  the  three 
years'  contest  over  his  alleged  insanity,  and  succeeded  in  clearing 
his  client.  Insanity  cases  are  largely  his  specialty. 

Owing  to  a  previous  friendship  with  Col.  Buford's  family,  and 
the  prevailing  prejudice  that  prevented  the  employment  of  local 
counsel,  Judge  Curtis  was  sent  for,  and  at  once  started  for  Frank- 
fort, where  he  procured  a  horse,  as  before  stated,  and  rode  through 
the  whole  surrounding  country  sixty  days  in  securing  evidence 
of  Buford's  hereditary  insanity,  which  was  of  a  positive  character- 
In  an  unfriendly  country,  with  a  deep-rooted  prejudice,  he  built 
up  a  strong  defense  from  the  very  foundation,  and  through  his 
skill  and  adroitness  the  life  of  the  defendant  was  undoubtedly 
saved.  A  striking  example  of  the  wonderful  will-power  of  a  single 
man,  inspired  with  the  fire  of  youthful  genius,  a  love  of  fair-play, 
and  the  untiring  energy  of  well-directed  work. 

His  eloquent  argument,  delivered  without1  notes,  is  so  closely 
condensed  that  nothing  more  could  be  omitted  and  preserve  its 
connection.  The  genius  of  the  address  is  its  appeal  to  the  chivalry 
of  the  South,  the  inherited  qualities  of  the  defendant,  whose  career 
he  traces  through  years  of  trouble  and  disappointment.  The  art 
of  an  advocate  was  never  more  effectively  used,  and  the  result 
is  a  marvel  to  the  profession. 

He  held  close  attention  throughout;  his  theory  of  defense  was 
insanity,  the  growth  of  years,  sleeping  like  a  serpent  in  the  blood 
since,  in  infancy,  he  first  opened  his  innocent  eyes  in  his  mother's 
arms.  At  times  latent,  at  others  wild  and  impulsive,  sending  a 
rudderless  mind  on  a  perilous  voyage  to  eternity,  till  reason  had 
not  left  her  throne,  but  unreason  had  crept  up  and  jostled  her 
on  her  seat.  Many  such  rare  and  beautiful  word  pictures  are  con- 
tained in  the  argument.  The  genius  of  his  argument  in  this  case 
was  in  his  eulogy  on  the  character  of  Kentuckians;  his  exordium 
was  admirable.  His  touching  reference  to  the  early  love  of 
Buford  moved  all  hearts  within  hearing.  It  is  an  eloquent  appeal 
for  human  life.  He  held  his  audience  and  jury  from  the  moment 
of  commencement  to  the  conclusion,  and  was  named  the  Napoleon 
of  the  defense. 

It  seems  impossible  to  omit  even  a  single  paragraph  from  the 
two  speeches  in  this  trial  and  preserve  the  connection  of  the  scenes 
and  incidents  which  are  one  and  inseparable.  The  arguments  are 
brief  for  a  case  of  such  magnitude;  and  this  one  was  made  under 


632  MODERN  JURY  TRIALS. 

an  extremely  adverse  pressure  of  public  opinion,  an  opinion  so 
strong  that  some  fifteen  hundred  men,  secretly  armed,  attended  it, 
and  many  assert  that  any  serious  mistrial  would  have  resulted  in 
bloodshed,  to  prisoner,  counsel  and  jury. 

JUDGE  CURTIS  said: 

If  Your  Honor  please  and  Gentlemen  of  the  Jury — It  is  fit  that 
this  sad  and  solemn  occasion  should  be  softened  and  graced  by  the 
divine  presence  of  the  fair.  To  what  spot  does  mercy,  as  typified 
in  the  form  of  woman,  so  readily  repair  as  to  the  scene  of  misery 
and  anguish  ?  Bulwer  has  most  truly  and  beautifully  said  that  there 
is  no  government  that  can  perish,  there  are  no  institutions  that  can 
be  destroyed,  if  the  patriotism  of  man  be  as  true  and  sincere  as  the 
silent  loyalty  of  woman's  mercy  and  affection.  I  rejoice  for 
myself  that  this  trial  has  had  so  many  amenities,  and  that  it  has 
had  so  few  asperities.  And  I  can  say  from  my  heart  with  the  dis- 
tinguished orator  of  Kentucky,  who  opened  this  discussion  on  the 
part  of  the  prosecution,  that  at  the  close  of  perhaps  the  cause  cel- 
ebre  of  all  generations  of  jurisprudence,  I  am  conscious  of  possess- 
ing no  thought,  no  sentiment,  no  emotion  of  bitterness,  against  any 
person  whomsoever.  I  recognize  in  the  personnel  of  the  prosecu- 
tion the  same  purity  of  sentiment  that  we  claim  for  ourselves,  and 
when  in  the  zeal  of  advocacy  I  descend  for  desperate  purposes  to 
assail  the  motives  of  professional  brethren  engaged  in  a  cause,  may 
my  tongue  cleave  to  the  roof  of  my  mouth.  I  believe,  and  I  say  it 
cheerfully,  because  it  is  truth,  that  this  cause  has  been  conducted 
by  the  prosecuting  officer,  Mr.  Montfort,  with  the  dignity,  the 
decorum  that  belong  to  a  gentleman,  and  with  the  learning  and 
zeal  that  belong  to  an  officer  of  the  state,  and  I  predict  to  you  that 
when  he  comes  to  address  you  he  will  not  permit  the  zeal  of  his 
advocacy  to  take  him  over  the  line  of  the  evidence  as  proven,  and 
he  will  not  substitute  the  inventions  of  a  gorgeous  imagination  for 
the  sworn  declarations  of  testimony. 

I  need  no  apology  for  appearing  before  a  jury  of  Kentucky;  but 
it  may  not  be  improper  for  me  to  say  why  I  am  here.  The  nephew 
of  that  unfortunate  man,  whom  it  is  my  Christian  privilege  to 
defend,  and  myself  were  bosom  friends.  He  was  the  friend  of  my 
youth.  He  was  the  friend  whom,  in  all  his  manly  beauty,  whom 
in  all  his  integrity  of  character,  in  all  his  loyalty  of  friendship,  I 
loved.  He,  gentlemen,  has  passed  away.  He  sleeps  in  that  beau- 
tiful city  of  the  dead,  the  cemetery  at  Lexington,  wherein,  greeting 
the  eye  of  every  beholder,  that  monument  to  Kentucky's  greatest 
•tatesman,  erected  by  pious  and  grateful  hands,  rises,  as  Webster 


BUFORD-ELLIOTT  CASE.  638 

says,  till  it  meets  the  sun  in  his  coming.  It  was  in  the  name  of 
that  friendship,  and  it  was  for  the  love  that  I  had  and  I  bore  for 
the  staunch  friend  of  my  youth,  that  when  the  application  was 
made  to  me  I  came  here  to  espouse  the  cause  of  this  unfortunate 
man,  whom,  really,  gentlemen,  God  and  not  you  ought  to  judge. 

Colonel  Breckneridge  said,  among  other  things,  that  one  of  the 
reasons  why  you  should  find  a  verdict  for  the  commonwealth  is, 
that  you  must  put  down  the  code  duello,  that  you  must  put  down 
the  reign  of  lawlessness  in  the  state  of  Kentucky.  Now,  I  under- 
take to  say  that  there  has  never  been  a  community  so  maligned  and 
abused  in  that  regard  as  this  same  commonwealth  of  Kentucky.  I 
have  been  in  the  midst  of  this  people  for  over  three  months,  and 
while  my  professional  engagements  in  times  past  have  led  me  into 
many  states  of  this  Union,  I  have  never  met  a  more  orderly,  a  more 
quiet,  a  more  peaceable,  a  more  inoffensive  population  than  that 
which  lives  in  Kentucky  to-day;  and  from  the  moment  I  came  over 
the  Ohio  river  I  have  received  nothing  but  hospitality  and  kind- 
ness, and  I  hold  the  warm  grasp  of  its  hand  in  mine  this  minute* 
And  is  it  not  strange  that  a  person  like  Col.  Breckenridge,  a  typical 
gentleman  of  Kentucky,  whose  family  Kentucky  has  loved,  and  for 
whom  she  has  done  so  much,  should  endeavor,  for  the  mere  purpose 
of  carrying  a  verdict  in  the  county  of  Owen,  to  emasculate  that 
sentiment  of  chivalrous  courage,  which,  after  all,  when  it  disap- 
pears carries  with  it  that  time-honored  chivalry  of  Kentucky? 
This  I  know,  that  when  the  code  duello  was  in  existence  a  man  was 
careful  of  what  he  said,  what  he  did,  what  he  uttered,  jealous  of 
the  rights  of  others,  solicitous  for  the  honor  of  women,  discharging 
all  the  duties  of  citizen,  neighbor  and  friend.  It  is  that  true  old 
school,  so  typified  by  Henry  Clay  and  John  Crittenden;  and  while 
I  believe  as  firmly  in  peace  and  order,  in  the  maintenance  of  law 
and  authority,  as  any  man  within  the  limits  of  this  state,  still,  far 
distant  be  the  day  when  that  true  sentiment  of  chivalrous  courage 
which  has  existed  in  your  veins  and  in  the  veins  of  your  fathers 
since  the  days  of  Daniel  Boone  and  Rogers  Clarke  shall  disappear 
as  the  heritage  of  this  great  and  God-favored  land. 

WHO    IS    BUFORD  ? 

Gentlemen  of  the  jury,  you  will  remember  that  General  Rodman 
took  occasion  to  put  the  question  to  you,  "  Who  is  Colonel  Buford, 
and  has  his  life  been  consistent  ?  "  Yes,  his  life  has  been  consistent 
in  sorrow;  his  life  has  been  consistent  in  resistance  to  the  machina- 
tions of  his  enemies  who  have  succeeded  in  despoiling  him  of  his 
property,  who  have  succeeded  in  this  day  placing  him  within  the 


(J34  MODERN  JURY  TRIALS. 

awful  shadow  of  the  gibbet.  You  will  remember  that  many  of  the 
witnesses  from  Woodford  county  told  you  that  when  he  was  a 
young  man  he  was  kind,  humane,  brave,  determined  and  benevo- 
lent. You  will  also  remember  that  many  of  the  witnesses  from 
Woodford  county  told  you,  even  those  summoned  by  my  learned 
brother  on  the  other  side,  that  there  was  a  sentiment  of  Christian 
faith  and  belief  in  his  soul,  and,  strange  as  it  may  seem,  when  you 
contemplate  the  near  close  of  his  life,  its  awful  character,  there  has 
been  running  all  through  it  a  sentiment  of  deep  religious  sensibility 
and  accountability.  He  believed,  in  the  language  of  one  of  the 
witnesses,  to  use  his  own  statement  in  that  regard,  in  the  self-evi- 
dent truths  of  Christianity.  He  believed  in  those  manifest  beauties 
and  conceptions  of  the  Sermon  on  the  Mount.  He  loved  to  read 
the  Book  of  Job,  which  Daniel  Webster  declared,  as  an  epic  poem, 
to  be  superior  to  the  Iliad  or  Odyssey  of  Homer.  He  delighted  in 
reading  the  Psalms.  He  rejoiced  in  the  Book  of  Revelations. 
Now,  gentlemen,  with  such  a  character  as  that,  with  such  an  edu- 
cation as  that,  with  such  a  sentiment  of  Christian  belief  and  pro- 
found faith  engrafted  upon  it  in  early  life,  he  could  not,  without 
some  great  mental,  physical  and  moral  disturbance,  suddenly  change 
in  character  and  in  the  mode  and  form  of  life. 

THE   DUTY   OF   THE   JUBT. 

I  ask  you,  gentlemen,  to  remember  that  you  are  not  only  respon- 
sible to  the  law  of  this  state,  that  you  are  not  only  responsible  to 
the  state  of  Kentucky,  but  that  you  are  responsible  to  your  God, 
through  your  oaths,  and  to  Christianity.  You  must  remember 
that  it  is  by  and  through  Christianity  that  the  great  lights  and 
sciences  have  been  diffused  through  the  world.  Civilization  bursts 
its  way  westward  through  all  the  earth,  returning  to  the  place 
of  its  origin.  You  are  not  sitting  here  as  the  blind  instruments 
of  vengeance.  You  are  not  sitting  here  as  the  supple  tools  of 
the  state.  You  are  sitting  here  possessed  of  the  highest  attri- 
butes of  man,  those  of  jurors.  You  hold  a  human  life,  and  per- 
haps an  immortal  soul,  in  your  keeping.  Therefore,  I  pray  you,  I 
beseech  you,  at  the  outset  of  this  discussion,  to  be  calm,  conside- 
rate and  patient,  and  not  to  be  carried  away  by  any  sentiment 
either  of  frivolity  on  the  one  hand  or  vengeance  on  the  other.  I 
say,  on  such  a  solemn  occasion  as  this,  when  a  man's  life  is  tremb- 
ling in  the  balance,  and  you  hold  the  scales,  how  grotesque,  how 
mean  and  dwarfish  would  it  be  in  me  to  endeavor  to  excite  you 
to  merriment  or  laughter.  I  am  addressing  twelve  jurors  of  the 
county  of  Owen,  in  the  grand  state  of  Kentucky,  and  I  am  speak- 


BUFORD-ELLIOTT  CASE,  635 

ing  to  them  through  their  consciences  and  their  understandings. 
I  am  not  addressing  a  political  auditory.  While  I  crave  the 
espect  of  all,  I  care  but  little  for  the  applause  or  censure  which  a 
laugh,  a  piece  of  merriment  may  excite.  My  business  is  of  a  more 
serious  character ;  yours  is  of  a  more  serious  character.  This  is 
not  the  place  to  dance  fantastic  in  the  presence  of  death.  This 
is  the  place,  and'  this  the  occasion,  invoking  Almighty  God  to 
enlighten  your  understandings,  to  consider  carefully,  dispassion- 
ately, deliberately,  this  testimony,  and  then  say  on  your  hearts 
and  your  consciences  if  the  state  has  made  out  a  case.  As  I 
construe  that  instruction  of  the  court,  this  prisoner  is  not  guilty 
if  he  were  an  insane  person  on  the  26th  of  March  of  this  year. 
He  is  charged  with  the  willful  murder  of  Judge  Elliott.  Well, 
of  course,  the  allegation  of  willful  murder  carries  with  it  the  alle- 
gation that  he  had  a  knowledge  to  distinguish  between  that  which 
is  right  and  wrong,  and  had  power  of  will  —  had  control  of  the 
will  sufficient  to  govern  his  passions  in  relation  to  the  deed.  I 
concede  to  you  now,  as  I  did  in  my  opening  on  the  other  day,  that 
if  Thomas  Buford,  on  the  26th  day  of  March,  1879,  was  a  sane 
person,  then  beyond  controversy  he  is  a  guilty  man,  and  should  be 
found  guilty  under  this  indictment ;  but  if  he  be  an  insane  person, 
and  if  you,  carried  away  by  passion  and  clamor,  as  many  juries  and 
jurors  in  similar  cases  have  been,  on  both  sides  of  the  water,  you 
consent  to  the  strangulation  of  an  insane  person,  what,  then,  is 
your  destiny  ?  Ah,  preferable  to  be  Buford  before  the  throne  and 
the  judgment  seat,  because  when  he  appears  in  the  presence  of  his 
Maker  for  judgment  for  deeds  done  in  the  body,  the  omnipotent 
God  knows  that  his  reason  has  been  beclouded,  that  his  mind  has 
been  benighted,  and  that  the  deeds  which  follow  hare  been  the 
result  of  the  affliction  with  which  God  has  seen  fit  to  visit  him. 
But  you,  drawn  from  the  wealth  and  the  respectability  of  the 
county  of  Owen,  selected  for  your  intelligence,  selected  for  your 
integrity,  with  no  cloud  on  your  minds  and  no  mist  covering  your 
reason,  what  will  you  say  when  your  brother's  blood  is  demanded 
of  you  ?  Why,  "  I  was  carried  away  with  the  eloquence  of  Col- 
onel Breckenridge ;  I  was  overcome  by  the  fervid  denunciation 
and  vindictiveness  of  General  Rodman."  Will  that  be  an  excuse, 
either  to  your  consciences  or  to  your  Maker  ?  Gentlemen,  God 
giving  me  strength  this  day — I  humbly  pray  his  aid — if  I  do  not 
prove  to  you  and  to  the  intelligence  of  this  country  with  mathe- 
matical accuracy  that  Colonel  Buford  is  insane  by  this  testimony, 
then  it  is  because  I  do  not  understand  the  use,  the  application  of 
the  English  language.  I  am  aware  that  a  great  prejudice  exists 


t>36  MODERN  JURY  TRIALS. 

against  this  defense.  Why  is  it,  and  why  should  it  be  ?  Where 
one  person  has  escaped  —  remember  this!  —  punishment  by  the 
unjust  plea  of  insanity,  seven  insane  beings  have  been  launched 
into  eternity.  That  is  the  result  that  the  careful  statistics  of  the 
wrorld  and  science  give.  And  is  it  not  awful,  when  you  contem- 
plate it,  that  the  percentage  of  human  life  where  that  plea  has 
been  interposed  has  not  been  on  the  side  of  mercy,  has  not  been  on 
the  side  of  charity,  but  has  been  on  the  side  of  death  and  strangu- 
lation ? 

General  Rodman  told  you  what  is  manifestly  absurd,  the  other 
day,  that  fifty  years  ago  such  a  defense  as  this  would  have  been 
kicked  out  of  a  court  of  justice.  Why,  over  a  hundred  years  ago 
Lord  Mansfield  repeatedly  directed  verdicts  of  acquittal  in  cases 
of  insanity,  and  your  honor  must  remember  in  your  extensive 
reading,  the  catholic  view  taken  by  Lord  Kenyon  in  the  Hatfield 
case,  where  he  says :  "  Gentlemen,  even  in  a  question  of  doubt, 
where  the  scales  are  oscillating,  let  them  turn  to  the  benefit  of  the 
prisoner,  and  acquit  him;  because,**  said  the  great  judge,  "it  is  a 
dreadful  thing  to  deface  the  image  that  God  has  made  ;  it  is  a 
terrible  thing  to  destroy  the  temple  of  an  immortal  soul ;  it  is 
a  dreadful  thing,**  he  said,  "to  put  ourselves  below  the  level  of 
the  savage.**  And  one  remarkable  thing  in  the  treatment  of  the 
insane — remarkable  because  inexplicable,  and  which  is  immortal- 
ized by  Fenimore  Cooper  in  one  of  his  novels — is  that  the  greatest 
charity,  the  greatest  Christian  charity  that  has  ever  been  shown 
to  the  insane,  the  mentally  afflicted,  has  been  exhibited  by  the 
North  American  savages,  the  aborigines  of  this  country.  It  was 
the  North  American  savage  who  treated  the  insane  as  one  pro- 
tected by  the  divine  blessing.  And  shall  we,  in  a  Christian  coun- 
try, with  the  light  of  the  Bible  illuminating  the  land,  with 
school-houses  and  the  pulpit  with  their  influence,  that  tends  to 
soften  and  mellow  the  human  character,  shall  we  treat  those 
mentally  afflicted,  those  who  seem  to  be  punished  for  some  inscru- 
table reason  of  God,  shall  we  treat  them  in  a  manner  inferior  to 
the  savage  of  the  wilderness? 

"Why,**  said  General  Rodman,  with  his  wave  of  the  hand, 
said  General  Rodman  in  his  tone  of  command,  "  kick  this  defense 
out  of  the  courts  of  justice,  and  kick  out  of  it,"  he  said,  "the 
venerable  Dr.  Bell."  Now,  gentlemen,  it  is  true,  as  that  magnifi- 
cent lawyer  and  true  Kentucky  gentleman  and  most  eloquent 
advocate  told  you  on  the  other  day,  Col.  Phil.  Thompson,  on 
whose  strong  arm  we  have  leaned,  up  to  whose  strong  mind  we 
have  looked  for  counsel  and  advice,  and  on  whose  brave  and  tru« 


BUFORD-ELLIOTT  CASE.  637 

heart  we  have  ever  relied — while  it  is  true  as  he  said  the  other 
day,  that  this  theory  of  insanity  has  made  gigantic  steps  in  the 
progress  of  the  nation,  still  it  is  like  the  progress  of  everything 
else  that  is  decreed  in  the  future  to  mark  God's  plans  and  wishes 
to  man.  When  Christopher  Columbus  told  the  king  and  queen 
of  Spain  that  by  sailing  westward  there  were  other  worlds  to 
discover,  and  new  realms  for  Castile  and  Aragon,  the  fanatics  of 
that  day  sought  to  burn  him  at  the  stake.  Why?  Their  con- 
struction of  the  Bible  and  its  teachings,  what  they  knew  of  the 
astronomy  of  the  ancients  and  of  that  taught  in  the  Scriptures 
was  that  the  earth  was  a  plane,  and  any  one  who  suggested  a 
different  idea,  any  one  who  believed  that  this  was  a  spherical 
planet,  revolTing  around  the  sun,  flying  in  the  immensity  of  space, 
was  a  heretic  to  God  and  his  religion.  Columbus  persevered, 
and  a  new  world  was  given  to  Castile  and  Aragon,  and  a  new 
outlet  and  a  new  channel  of  development  for  the  ideas  of  man, 
of  the  progress  of  science.  Take  the  more  recent  example  of 
Edison.  When  he  took  one  of  his  instruments  to  Paris  and  from 
Paris  into  the  mountains  of  France  and  exhibited  it  to  the  peas- 
antry, they  believed  that  if  he  was  not  Satan  himself,  he  was  his 
embassador.  And  yet,  see  what  he  has  done  for  mankind.  By  the 
telephone,  with  its  connecting  wires,  you  can  stand  in  the  city  of 
Owenton  and  converse  with  a  man  on  the  banks  of  the  Ganges  ; 
by  his  electric  light  he  proposes  to  give  to  the  rich  and  poor  a 
better,  richer  and  greater  light  than  was  ever  given  before,  at 
much  less  expense.  And  yet  contemplate,  that  if  he  had  lived  a 
hundred  and  fifty  years  ago  he  pro*bably  would  have  met  the 
doom  of  witchcraft.  Remember  now,  even  in  comparative  days 
of  enlightenment,  the  father  of  the  Baptist  religion,  Roger  Wil- 
liams, was  forced  to  seek  an  asylum  in  Rhode  Island.  I  tell  you, 
gentlemen,  as  Galileo  said,  "the  world  moves." 

The  unbelieving  endeavored  to  make  him  take  that  back.  They 
subjected  him  to  the  torture.  They  succeeded  awhile  in  overcom- 
ing the  resistance  of  the  venerable  old  man,  but  the  moment  the 
bands  of  torture  were  removed  he  raised  his  eyes  to  heaven  and 
exclaimed  :  "  The  world  does  move."  So  it  is  with  this  science. 

But,  gentlemen  of  the  jury,  before  I  come  to  the  discussion  of 
the  main  issues  in  this  case,  before  I  strike  the  main  line  of  battle 
of  the  other  side,  I  want  to  drive  in  the  pickets  and  the  skirmish 
line,  because  I  have  found  in  the  trial  of  cases,  that  where  that 
thing  is  neglected  in  the  outset,  some  few  things  may  escape  the 
memory  of  the  advocate,  and  bear  fruit  in  prejudice  to  his  client. 


638  MODERN  JURY  TRIALS 

[Counsel  here  answered  Gen.  Rodman's  speech  in  detail  as  to 
Buford's  insanity,  and  especially  as  to  his  trouble  with  Turner, 
which  turned  out  to  be  a  simple  assault  with  a  cane,  after  Buford 
had  been  first  assaulted  !] 

Now  about  that  affair  at  Lexington,  I  am  going  to  call  your 
attention  to  that  for  another  purpose.  Is  it  any  argument  that 
Tom  Buford  is  not  insane  that  he  is  a  brave  man  ?  Is  it  any  argu- 
ment that  he  is  not  insane  that  he  is  a  person  of  dauntless  and  dis- 
tinguished courage  ?  The  affair  at  Lexington  was  begun  by 
Thomas,  who,  after  firing  two  shots  (Col.  Buford  not  being  able 
to  return  the  fire  from  some  defect  in  his  cap  or  lock),  finally 
received  the  fire  of  Col.  Buford,  who  refrained  from  firing  at  the 
outset,  as  you  will  remember,  and  as  I  have  stated,  because  the 
lady  was  passing  behind  Col.  Thomas,  and  he  felt  that  possibly  he 
might  endanger  her  life.  Behold  the  man  standing  on  the  brink 
of  a  possible  eternity,  not  knowing  how  soon  his  own  life  might 
be  taken  by  his  adversary,  who  paused  because  he  thought  it 
possible  that  he  might  take  the  lady's  life.  Is  that  courage  or  is  it 
cowardice?  I  say  it  is  in  the  proof  that  he  was  a  man  of  daunt- 
less courage,  and  with  those  peculiar  views  of  social  duties  and 
social  honor  that  belong  to  the  people  of  Kentucky.  The  very 
manner  in  which  he  killed  Judge  Elliott  shows  that  he  was  not  in 
possession  of  his  senses.  That  man  there,  now  fast  approaching 
dementia,  was  a  man  who,  instead  of  seeking  advantage  in  personal 
encounters,  and  who  was  never  engaged  in  any  but  were  forced 
upon  him,  gallantly  gave  advantage  to  the  other  side.  That  is  the 
history  of  his  life,  and  if  he*  had  been  the  Tom  Buford  of  twenty 
years  ago,  even  if  he  had  resolved  to  kill  Judge  Elliott,  he  would 
have  sent  him  word — would  have  told  him  to  be  on  his  guard.  Gen. 
Rodman  said,  sneeringly,  trying  to  prejudice  you  against  the  man 
— Rodman  forgot  that  you  are  his  equals,  and  the  equals  of  any  in 
the  world — that  we  are  trying  to  create  a  distinction  between 
Buford  and  an  ordinary  citizen.  Because  he  is  a  descendant  and 
scion  of  a  noble  house,  is  that  to  his  discredit  ?  Is  that  to  be  tor- 
tured to  his  disadvantage  ?  He  is  descended,  like  many  of  you, 
from  old  Virginia  ancestry.  You  remember  that  in  the  early  his- 
tory of  the  state  that  portion  of  Virginia  that  is  now  known  as 
Kentucky  was  explored  and  peopled  by  daring  and  adventurous 
men,  like  Daniel  Boone  and  others,  and  it  is  from  the  character  of 
those  persons — their  devotion  and  their  sense  of  honor — that  you 
have  bred  up  in  this  state  that  race  of  brave  and  noble  men  and 
beautiful  women  that  have  distinguished  Kentucky  for  a  hundred 
years.  And  is  it  to  be  said  that  it  is  to  his  discredit  that  he  is  a 


BUFORD-ELLIOTT  CASE.  639 

scion  of  such  ancestry  ?  It  strikes  me  that  those  are  the  arts  of 
advocates  that  are  appealed  to  only  in  desperate  extieraities.  They 
do  not  belong  to  that  higher,  that  nobler,  that  broader  and  more 
catholic  view  of  the  practice  of  our  profession. 

I  come  now,  gentlemen,  to  discuss  that  which  is  exceedingly 
painful  to  me,  because  it  is  the  womb  of  all  this  trouble — the  source 
and  origin  of  the  hundred  calamities  that  have  fallen  upon  the 
devoted  head  of  Thomas  Buford — the  source  and  origin  of  that 
tragedy  that  has  resulted  in  the  death  of  a  judge  of  a  court  of  the 
highest  jurisdiction — of  dernier  resort.  And  it  is  natural  that,  in 
approaching  such  a  subject,  I  should  feel  its  delicacy  and  import- 
ance, and  that  at  the  same  time  I  should  be  agitated  in  contempla- 
ting it.  Way  up  in  the  county  of  Henry — and  some  parts  of  it  are 
as  rich  as  Woodford  and  Fayette — is  this  estate,  the  litigation  over 
which  brought  Buford  into  the  Court  of  Appeals,  and  the  decision 
of  which  litigation,  perhaps,  brought  Elliott  to  the  grave  and  this 
man  within  the  shadow  of  the  gibbet — this  proof  shows  that  some 
time  in  1860  odd  (forget  the  year),  every  dollar  that  Buford  had — 
every  dollar  that  Mary  Buford  had — was  invested  in  this  estate. 
Follow  me,  and  I  believe  I  shall  make  it  as  simple  as  the  story  of  a 
primer,  and  if  there  is  a  man  on  that  jury  when  I  get  through  that 
statement  who  does  not  agree  with  me,  that  however  unintentional 
it  was  on  the  part  of  a  judge  of  the  Court  of  Appeals,  that  the 
result  was  to  despoil  Buford  and  his  sister  Mary,  to  deprive  them 
of  the  money  they  had  invested,  then  I  have  very  much  mistaken 
your  intellectual  caliber.  One  fact  stands  out — that  money  was 
paid  in  there  and  it  never  came  out.  One  fact  stands  out — that  the 
money  paid  in  there  represented  a  modest  fortune.  It  was  their 
all,  and  after  they  had  bade  adieu  to  that  money,  they  were  pau- 
pers on  the  face  of  the  earth.  How  were  they  despoiled  ?  Let  me 
show  you.  Some  few  years  before  that  time  one  John  N.  Smith 
died  in  the  county  of  Henry  a  very  rich  man,  and  left  a  will  that 
operated  as  a  deed  of  trust,  and  in  this  will  he  left  to  his  grand- 
daughter, Miss  Lizzie  Roland,  real  estate  and  a  certain  sum  of 
money,  the  principal  of  which  she  was  not  to  receive  until  she  was 
twenty-six  years  of  age.  The  law  says  that  any  departure  from  the 
provisions  of  that  trust — any  antagonism  to  its  limitations — makes 
the  act  void  and  nugatory,  and  that  has  been  decided  in  so  many 
cases  that  I  believe  the  law  books  containing  cases  that  have 
decided  it  would  make  a  blanket  from  Maine  to  Kentucky.  When 
she  was  twenty-one,  in  violation  of  his  duty  as  trustee  and  guard- 
ian, her  father,  George  Roland,  contracted  with  her  for  this  identi- 
cal piece  of  land,  which  was  the  subject  of  litigation,  which  he 


640  MODERN  JURY  TRIALS. 

afterward  sold  to  Mary  Buford,  and,  of  course,  Mary  Buford  could 
receive  no  good  title  unless  she  (Lizzie  Roland)  should  give  a  con- 
firmatory deed  when  she  came  of  proper  age.  That  was  the  title 
that  Mary  Buford  received.  The  deed  was  also  not  properly 
acknowledged.  Roland,  the  father,  sought  to  have  the  daughter 
perfect  the  title.  She  refused,  unless  the  purchase  money  should 
be  paid  to  her.  It  had  already  been  paid  to  her  father.  But  sub- 
sequently she,  having  married  in  Missouri  a  man  by  the  name  of 
Smith,  or  some  other  uncommon  name,  gave,  in  conjunction  with 
Roland,  a  confirmatory  deed.  But,  mark  you,  the  land  in  this  last 
deed,  by  metes  and  bounds,  related  to  an  entirely  different  tract  of 
land  from  the  one  originally  conveyed  to  Mary  Buford.  You  see 
that  they  have  got  their  money — $22,000.  The  Bufords  could  not 
raise  a  dollar  on  the  farm.  Just  as  soon  as  Gnthrie  got  the  notes, 
he  poured  that  leprous  poison  in  the  ears  of  the  people  that  the  title 
was  not  good.  Buford  could  not  raise  a  dollar  on  the  farm;  he 
could  not  get  the  money  to  work  it.  "  What  did  he  do  with  the 
money  from  his  farm  ? n  Col.  Breckenridge  asks.  Every  dollar 
that  he  could  amass  for  the  last  ten  years  was  paid  in  feeing  law- 
yers, who  betrayed  him,  as  he  believed,  and  in  carrying  on  this  lit- 
igation. That  decision  of  the  Court  of  Appeals — there  is  no  power 
on  this  earth  that  can  ever  review  it,  that  can  ever  revise  it;  but 
before,  in  the  discharge  of  my  duty  as  an  advocate,  I  would  say  on 
my  oath  of  office  that  I  believe  that  the  decision  was  the  correct 
one,  either  in  law  or  in  equity,  I  would  fall  dead  at  the  feet  of  this 
jury.  In  my  humble  judgment,  after  an  examination  of  the  facts 
in  this  case,  after  reading  and  examination  of  the  briefs  on  both 
sides  and  the  opinions  of  the  Court  of  Appeals,  he  was  entitled  in 
express  law  to  a  rescission  of  the  contract  and  a  return  of  the 
money,  or  to  receive  a  perfect  title.  However  that  may  be,  let  it 
pass.  Let  it  be  as  Robert  Hall,  the  preacher,  says,  one  of  the 
unnumbered  things  that  go  up  to  the  day  of  judgment.  But  I  ask 
you,  gentlemen,  if  you  had  bought  an  estate  in  the  county  of  Owen, 
you  put  $10,000  in  it,  and  gave  $2,000  in  notes;  you  find  the  title 
no  good;  you  try  to  raise  money  by  borrowing;  no  one  will  lend; 
you  cannot  raise  a  dollar;  you  cannot  work  your  farm  on  nothing. 
What  would  you  say  !  As  Charles  Reade  says,  "  put  yourself  in 
his  place."  Gentlemen,  would  not  your  minds  under  such  a  mis- 
fortune, strong  as  they  may  be,  totter  under  that  load  ? 

But,  gentlemen,  you  must  remember  that  it  is  immaterial  as  a 
principal  in  medical  jurisprudence,  it  is  immaterial  whether  the 
delusion  that  he  entertained  was  based  upon  either  real  or  imagin- 
ary wrong.  The  result  is  the  same.  His  delusion  was  that  all  the 


BUFORD-ELLIOTT  CASE.  641 

people  with  whom  he  dealt  in  relation  to  this  property  were  com- 
bined and  in  a  conspiracy  against  him,  it  is  immaterial  whether  the 
facts  be  such  as  to  warrant  the  idea  that  he  had  been  hardly  dealt 
with  or  not.  The  question  is,  did  he  have  that  delusion  ?  If  he 
had — as  I  shall  demonstrate  to  you  very  soon — then  he  was  an 
insane  man,  and  in  the  sight  of  the  law,  and  in  conformity  with  his 
honor's  instructions,  he  cannot  be  convicted. 

And  right  here,  gentlemen  of  the  jury,  lest  I  may  forget  it,  the 
question  may  be  put  to  you  by  the  learned  attorney  for  the  people, 
when  he  comes  to  sum  up  this  case:  "What  are  you  going  to  do 
with  Buf ord  ?  "  I  do  not  ask  that  Buf ord  shall  go  forth  upon  the 
world.  The  asylum  is  his  place.  I  make  a  prediction  in  the  pres- 
ence of  this  large  number  of  people,  and  it  is  this:  That  Colonel 
Buford,  now  rapidly  approaching  dementia,  that  total  tomb  of  the 
mind,  if  he  is  not  strangled  by  your  verdict,  within  a  year's  time 
will  so  far  have  parted  company  with  the  anchor  of  his  reason  that 
he  will  be  unable  to  tell  the  face  of  his  best  friend  or  to  speak  his 
own  name.  But  the  district  attorney  will  say  to  you  that  he  can 
be  cured.  Ah  !  that  is  a  disease  that  can  never  be  cured.  No  doc- 
tor or  keeper  of  a  lunatic  asylum  will  ever  certify  his  recovery; 
first,  because  it  is  impossible;  next,  because  he  will  not  dare  to  do 
so.  Would  you  send  an  insane  man  to  Kentucky's  hell  at  Frank- 
fort ?  Is  it  not  a  sin  to  punish  him  with  a  living  death  ?  If,  in  the 
darkened  chamber  of  that  man's  mind,  he  could  form  a  decision 
upon  this  subject,  I  believe  he  would  prefer  death  to  such  a  linger- 
ing captivity. 

Gentlemen  of  the  jury,  there  is  just  one  point  that  I  wish  to 
notice  in  Col.  Breckenridge's  speech;  with  its  bouquet  part  I  have 
nothing  to  do.  Its  fragrance  is  in  my  nostrils,  but  I  turn  to  the 
rose  and  it  is  faded.  As  I  tell  you,  I  am  here  to  address  you  in  no* 
popular  terms.  Neither  am  I  come  here  with  prepared  and  select 
graces  and  flourishes.  Concerning  his  controversy  with  .my  dis- 
tinguished and  talented  brother  Settle,  I  have  nothing  to  say.  I 
think  Mr.  Settle  is  well  and  fully  competent  to  take  care  of  him- 
self. But  there  is  one  thing  that  escaped  Col.  Breckenridge  in  the 
fervor  of  advocacy  which  pained  me  to  hear,  coming  from  the  lips 
of  so  lovely  a  character.  Not  content  with  depicting  the  nature 
and  completeness  of  the  overthrow  of  this  man,  tracing  as  he  did 
with  remorseless  pencil  the  history  of  his  life  (from  his  standpoint) 
from  the  time  he  left  the  shelter  of  his  ancestral  trees  at  Wood- 
ford,  down  to  the  scene  at  his  sister's  grave,  he  added  a  Parthian 
arrow  of  malice,  when  he  said  that,  as  much  as  Buford  loved  his 
gister,  he  never  embellished  her  grave.  Here  was  a  man  struggling 
41 


642  MODERN  JURY  TRIALS. 

for  existence — for  life — through  ten  years  of  hardship,  against  all 
the  combined  powers  of  Frankfort  and  everywhere  else.  He  had 
hardly  the  means  of  subsistence.  When  he  went  there  that  day,  it 
was  for  the  express  purpose  of  seeing  what  he  could  do,  or  of 
making  some  arrangements  for  erecting  a  monument  over  her 
whom  he  loved.  He  was  disappointed  in  the  money  that  he 
expected  to  receive.  And  while  he  is  here  in  bonds  and  in  chains, 
sitting  here  so  indifferent,  so  vacant  and  absorbed,  his  thoughts  are 
even  now  dwelling  upon  the  sad  story  of  her  wrongs  and  resting 
upon  her  lonely  grave.  Her  memory  is  written  all  over  his  life;  it 
is  written  all  over  his  character;  it  is  written  all  over  this  tragedy; 
and  when  on  the  brink  of  a  possible  grave  at  Frankfort,  his  last 
thought  was  of  her,  and  he  says  in  that  moment  which  culminated 
in  this  most  tragic  horror:  "My  sister's  assassination  and  robbery 
which  I  wish  to  try."  And  can  any  one  who  has  heard  the  evi- 
dence— you,  gentlemen  of  the  jury,  can  you  say  in  your  hearts  that 
there  was  ever  a  moment  when  he  forgot  her  image  ?  Was  there 
ever  a  moment  his  heart  did  not  throb  in  his  bosom  when  he 
remembered  her  saintly  name?  Oh,  gentlemen  of  the  jury,  what- 
ever you  do  with  this  man,  do  not  despoil  him  of  that  last  consola- 
tion, the  love  of  that  saintly  sister  who  now  so  sweetly  sleeps.  Do 
not  pluck  from  his  despairing  mind  the  last  solace  that  he  has  on 
earth. 

Gentlemen  of  the  jury,  I  now  come  to  what  is  the  main  issue  in 
this  controversy.  What  was  the  character  of  the  mind  of  Thomas 
Buford  on  the  twenty-sixth  day  of  March,  1879?  I  join  in  what- 
ever words  of  praise,  of  commendation,  have  been  spoken  in  eulogy 
of  Judge  Elliott.  I  believe  him  to  have  been  the  most  lovely, 
amiable  and  Christian  character.  May  he  serenely  sleep  in  his 
everlasting  rest.  But  I  ask  you,  gentlemen  of  the  jury,  can  you 
recall  to  life  and  beauty  his  inanimate  form  by  the  strangulation  of 
that  maniac  ?  Can  you  satisfy  the  law,  which  forbids  you  to  con- 
vict an  insane  person?  Will  you  satisfy  public  clamor,  which, 
after  all,  when  the  excitement  is  over  and  passed  away,  will  change 
its  present  cry,  arid  the  public  will  say  that  you  have  done  your 
duty  as  well  as  the  Roman  of  old.  Can  you  satisfy  your  own  con- 
sciences, sworn  as  you  are  to  true  deliverance  make  between  the 
people  and  the  prisoner,  when,  by  every  application  of  law,  this 
maniac  is  proven  to  be  insane  by  their  own  testimony?  I  will  first 
prove  him  insane  by  our  evidence.  I  shall  then,  with  the  same 
mathematical  accuracy,  prove  him  insane  by  their  proof,  including 
the  testimony  of  Dr.  Chipley.  That  is  not  a  difficult  task  I  have 
before  me;  for,  while  I  have  the  greatest  reverence  for  Dr.  Chipley, 


BUFORD-ELLIOTT  CASE.  643 

and  would  be  loth  to  say  anything  disrespectful  of  that  venerable 
man,  still  it  is  necessary  to  make  his  proof  my  profit.  And  I  will 
even  make  it  satisfactory  to  my  astute  friends  of  the  press  that  he 
is  one  of  the  strongest  witnesses  on  our  side — his  statements;  not 
his  conclusions.  I  told  you  a  little  while  ago  that,  where  one  man 
had  escaped  unjustly  by  the  plea  of  insanity,  seven  insane  men  had 
been  strangled  by  law.  And  is  not  that  enough  to  secure  the 
greatest  caution?  Is  not  that  enough  to  put  the  jury  on  their 
guard  against  substituting  prejudice  for  proof?  A  great  many 
years  ago,  in  the  state  of  New  York,  a  man  by  the  name  of  Free- 
man slew  the  entire  family  of  Van  Ness,  in  all  their  life  and  beauty, 
including  even  the  little  children — one  upon  its  mother's  knee.  He 
was  indicted  for  the  homicide.  The  court  assigned  to  him  Gov. 
Seward  for  counsel.  Gov.  Seward,  upon  investigation  of  the  facts, 
came  to  the  conclusion  that  the  man's  brain  was  diseased,  and  he 
had  the  moral  courage  to  go  into  a  court  of  law  and  proclaim  his 
conviction,  and  to  defend  that  man  upon  the  ground  of  insanity. 
John  Van  Buren  was  attorney-general  ("  Prince  John,"  as  he  was 
called),  with  the  entire  press  at  his  back,  calling  for  immolation  of 
the  man,  with  the  clergy  thundering  from  their  pulpits,  not  in 
imitation  of  their  Divine  Master,  the  Prince  of  Peace,  but  more 
like  thirsty  hounds  upon  the  fox's  track;  every  influence  of  social 
life  and  order  arrayed  against  him,  no  man  but  Seward  for  him; 
the  jury,  carried  away  by  the  clamor,  in  the  face  of  the  most  posi- 
tive evidence,  and  convincing  medical  proof,  found  him  guilty,  and 
while  the  case  was  pending  on  appeal  the  prisoner  died.  "What  do 
you  suppose  the  post-mortem  revealed  ?  An  extensive  and  organic 
disease  of  the  brain,  so  that  pieces  of  the  brain  on  the  knife  of  the 
surgeon  parted  at  the  slightest  touch.  And  what  a  crime  was  that 
jury  prevented  from  consummating  which  they  started  to  achieve; 
but  Providential  interference  saved  their  souls  from  the  guilt  of 
his  murder.  Do  not  doubt  Buford's  life  is  as  dear  to  God  as  yours, 
and  if,  in  the  face  of  the  most  convincing  proof,  you  hang  him 
upon  the  gibbet,  how  will  you  answer  upon  the  great  day  ?  Will 
it  be  sufficient  for  you  to  say  that  society  and  the  press  demanded 
it,  that  the  advocates  demanded  it  ?  The  question  that  will  be  put 
to  you  will  be,  "  Did  you  do  your  duty  ?  " 

You  must  remember  a  case  (some  of  you,  I  have  no  doubt),  the 
case  of  John  Gardner,  who  attempted  to  murder  Postmaster-Gen- 
eral Wickliffe,  then  a  citizen  of  Kentucky.  Gov.  Wickliffe  was 
not  fatally  stabbed.  On  his  recovery,  he  humanely  interposed, 
obtained  a  commission  of  lunacy,  and  through  his  efforts  the  man 
was  saved.  It  transpired  that  the  man  had  thought  that  Governoi 


644  MODERN  JURY  TRIALS. 

Wickliffe  and  others  had  conspired  to  throw  him  from  the  deck  of 
a  steamboat.  And,  now,  suppose  Wickliffe,  with  a  narrow  view 
and  unchristian  heart,  had  pursued  that  man  with  the  vindictive- 
ness  of  the  bloodhound,  had  scouted  his  defense,  what  situation 
would  he  have  been  in  ?  Why,  gentlemen,  books  are  full  of  such 
cases.  Another  instance  :  John  Martin,  who  burned  down  the 
church  at  York,  England,  because  he  was  a  dissenter,  and  because 
he  believed  he  heard  a  voice  from  heaven  commanding  him  to  burn 
down  that  pile  of  heresy. 

There  is  one  feature  in  this  trial  which,  in  my  opinion,  is  the 
controlling  issue.  You  will  remember  the  evidence  of  Mrs.  Merri- 
wether.  She  states  in  her  testimony  that  she  was  for  many  years 
acquainted  with  Col.  Bnford — that  he  often  came  to  her  house — 
that  he  frequently  stopped  there  for  a  night,  and  she  narrates  one 
or  more  occasions  on  which,  hearing  him  walking  on  the  corridor, 
she  got  out  of  bed,  put  on  her  clothing,  and  went  out  to  where  he 
was  passing  to  and  fro,  up  and  down,  talking,  mumbling,  cursing, 
muttering  to  himself,  and  she  inquired  the  reason  of  his  unrest. 
You  will  remember  the  memorable  answer.  That  he  had  been  in 
communication  with  his  sister's  spirit.  Now,  you  must  remember 
there  is  not  one  iota  of  proof  that  antagonizes  that  statement  of 
Mrs.  M.,  and,  for  all  the  purposes  of  this  trial,  it  must  be  taken  as 
conclusively  and  controllingly  true.  He  believed  then,  as  he  fre- 
quently said  to  Mrs.  M.,  that  he  both  saw  and  communed  with  his 
sister.  While  I  respect  every  man's  faith  and  belief,  I  do  not 
believe  in  spiritualism — communications  of  the  living  with  the 
dead.  Medical  jurisprudence  denounces  it  as  rank  madness  in  any 
one  who  does.  On  that  question  there  can  be  no  divergence  of 
opinion  in  the  medical  profession — every  writer  who  has  ever  writ- 
ten on  that  subject.  You  may  take  all  the  most  eminent  medical 
authorities  (with  whom  Chipley  does  not  appear  to  be  familiar), 
and  there  is  not  one  of  them  but  declares  that  such  a  belief  indi- 
cates not  only  positive,  but  radical,  derangement  of  the  mental 
functions.  Well,  what  did  Chipley  say  on  that  point  ?  His  honor 
did  not  allow  me  the  scope  I  desired.  After  recess,  the  court 
rather  shut  the  gate  against  the  cross-examination  of  Chipley,  who 
retired  behind  the  bars,  and  when  I  found  that  his  honor's  rulings 
were  in  that  direction,  I  did  not  wish  to  pursue  questions  that 
could  only  be  objected  to.  In  your  opinion,  what  is  the  condition 
of  the  mind  of  the  prisoner  ?  He  believes  that  he  was  in  com- 
munication with  the  spirits  of  the  departed.  "  Why,  that  is  evi- 
dence of  delusion.  Delusion  is  insanity,  undoubtedly." 

Gentlemen,  to  illustrate  the  domination  that  a  single  idea  maj 


BUFORD-ELLIOTT  CASE.  645 

get  over  the  human  mind,  one  of  the  most  familiar  cases  known  to 
the  legal  and  medical  world  is  that  of  the  witness  who  was  cross- 
examined  for  several  hours  by  Lord  Erskine  in  a  celebrated  trial  in 
England.  He  examined  him  upon  almost  every  topic  of  human 
knowledge,  with  which,  strange  to  say,  the  witness  seemed  to  be 
familiar,  and  to  use  the  felicitous  language  of  Dr.  Johnson  in  his 
epitaph  on  Goldsmith,  "He  touched  no  subject  that  he  did  not 
adorn."  Lord  Erskine  was  about  to  let  the  witness  go,  when  Dr. 
Sims  suggested  the  question,  "Ask  him  if  he  is  the  Redeemer." 
Upon  the  question  being  put  he  arose  from  his  seat,  straightened 
himself  up  with  a  solemn,  almost  tragic  air,  and,  placing  his  hand 
upon  his  heart,  he  exclaimed,  "I  am  the  Christ."  Now,  that  is  an 
instance  of  a  most  intelligent  mind  constantly  pursued,  constantly 
imbued,  constantly  controlled,  by  a  central  idea  that  was  mani- 
festly a  delusion.  Another  is  recorded  by  the  eminent  Lord  Mans- 
field in  the  case  of  Wood  v.  Monroe,  where  a  man  who  had  acquired 
a  large  fortune  in  a  successful  business  in  the  city  of  London,  had 
built  it  up  by  fortunate  business  sagacity,  by  his  prudence,  by  his 
care,  and  honesty  in  his  dealings  with  his  fellow  men,  and  yet 
labored  under  the  unhappy  delusion  that  he  had  a  correspondent  in 
the  person  of  a  princess  in  a  tower.  When  he  first  brought  his 
action  for  damages  against  Dr.  Monroe  for  detaining  him  in  his 
sanitarium,  as  Dr.  Chipley  would  call  it,  such  was  his  composure 
and  forethought  that  it  was  impossible  to  shake  him  upon  any  sub- 
ject, until  the  question  was  put  to  him  in  reference  to  his  corre- 
spondence. Then  he  revealed  his  infirmity,  and  to  show  you  the 
remarkable  working  of  his  mind  in  that  instance,  seeing  that  he 
had  lost  his  suit  by  the  revelation  of  that  infirmity,  he  brought 
another  within  the  jurisdiction  of  Westminster,  and  such  was  his 
self-control  that  it  was  impossible,  on  that  occasion,  to  compel  him 
to  expose  his  affliction,  and  it  was  only,  sirs,  upon  proof  given  ali- 
uncle  of  his  statements  made  on  the  former  trial,  that  Mr.  Justice 
Mansfield  directed  the  jury  to  find  for  the  defendant. 

A  great  deal  has  been  said  here,  both  by  Mr.  Breckenridge  and 
by  General  Rodman,  in  reference  to  the  candidature  of  Col.  Buford 
for  the  legislature.  If  I  remember  rightly,  I  read  some  years  ago, 
either  in  a  Kentucky  paper  or  in  an  extract  from  a  journal  in  this 
state,  that  the  whole  Kentucky  legislature  were  crazy,  because  they 
refused  to  pass  an  appropriation  for  the  opening  up  of  the  Ken- 
tucky river.  The  world's  history  is  full  of  instances,  gentlemen,  of 
the  most  exalted  genius,  of  the  most  profound  learning,  of  the  most 
perfect  address  in  public  affairs,  all  centered  in  persons  who  were 
in  reality  insane.  You  must  draw  a  long,  a  wide,  a  vivid  lins 


$46  MODERN  JURY  TRIALS. 

between  insanity,  which  is  a  derangement  of  the  faculties  with 
which  God  has  gifted  man,  and  imbecility,  which  is  a  mental  dark- 
ness from  the  beginning.  The  insane  may  accomplish  many  things 
in  this  life,  and  be  possessed  of  surpassing  confidence;  the  imbecile 
finds  himself  utterly  unable  to  grasp  an  idea,  to  control  the  pur- 
pose or  to  achieve  an  object.  But,  after  all,  in  this  case,  supposing 
the  theory  of  the  other  side  to  be  true,  to  what  does  that  evidence 
amount  ?  I  believe  there  are,  in  the  entire  testimony,  two  or  three 
people,  who,  on  being  pressed  closely  on  the  cross-examination  of 
my  brother  Monfort,  admitted  that  they  had  favored  his  nomina- 
tion at  the  primary  convention,  and  when  asked  their  reason, 
answered  that  he  was  their  neighbor. 

Well,  now,  gentlemen  of  the  jury,  that  is  all  the  consolation  and 
satisfaction  the  prosecution  have  out  of  that  circumstance.  "Were 
these  two  or  three  people,  a  year  or  two  in  advance  of  this  terrible 
tragedy,  to  foresee — was  it  within  the  knowledge  of  man  that  the 
insanity  which  they  detected  in  him  on  a  single  subject  was  to  cul- 
minate in  this  awful  catastrophe  ?  The  same  observation  is  true  in 
regard  to  the  comment  made  by  Gen.  Rodman  upon  the  testimony 
of  Wallace  Harper,  who  heard  Tom  Buford  say,  he  declares,  that 
if  the  suit  went  against  him,  he  would  have  satisfaction,  or  that  he 
would  have  blood.  It  did  not  occur  to  that  gentleman,  any  mora 
than  it  would  to  you  or  me  under  similar  circumstances,  that  that 
monomania,  as  the  court  declares  it  to  be,  had  taken  such  entire 
control  of  his  mind  as  to  culminate  and  end  in  assassination.  I  say 
that  some  of  the  most  brilliant  men  that  the  world  has  ever  seen 
have  been  afflicted  with  insanity.  Lord  Clive,  who  founded  the 
British  Empire  in  India,  closed  his  eyes  in  mental  eclipse.  And 
there  is  a  very  recent  case  in  this  state  of  Kentucky,  where  a  judge 
of  this  very  Court  of  Appeals,  conscious  that  he  was  mentally 
afflicted,  blew  out  his  brains  with  a  pistol.  I  refer  to  the  case  of 
Judge  Hist.  While  he  was  on  the  bench,  was  there  any  judge  who 
was  clearer,  who  was  more  accurate  in  his  decisions  ?  Yet  he  felt 
a  cloud  over  him;  he  felt  his  doom  coming  on,  and  recognizing  the 
fact  that  he  had  parted  anchor  with  reason,  he  did  what  was  insane, 
jumped  the  life  to  come,  and  rushed  unbidden  into  the  presence  of 
his  Maker.  You  see  that  same  singularity  in  the  walks  of  litera- 
ture, of  science,  and  of  art.  Keats,  one  of  the  most  brilliant  poets, 
the  divinest  bird  of  British  song,  closed  his  life  in  mental  darkness 
at  Naples.  Hugh  Miller,  the  great  Scotch  geologist,  who  opened 
up  to  the  fascinated  mind  of  mankind  the  secrets  of  the  natural 
world,  died  by  his  own  hand.  And  how  almost  comparatively 
recent  is  the  circumstance  of  the  greatest  historical  painter  that 


BUFORD-ELLIOTT  CASE.  647 

England  ever  produced,  who,  worn  out  with  the  woes  and  disap- 
pointments of  this  life,  took  his  own,  and  passed  away  as  a  suicide. 
So  you  see,  in  the  light  of  history,  in  the  light  of  experience,  in  the 
light  of  example,  there  is  nothing  but  weakness  in  that  argument. 
True  it  is,  that  mental  strength  and  weakness  exist  only  in  the 
comparative;  but  true  it  is  that  the  most  gifted  beings  whom  the 
Almighty  God  has  endowed  have  in  some  particulars  of  their  career 
shown  indications  of  the  mental  infirmity  which  we  claim  affecta 
this  respondent. 

HIS    EABLT   AFFECTIOWS. 

I  was  very  much  surprised  and  grieved  the  other  day  to  hear 
the  gallant  and  chivalrous  Colonel  Breckenridge,  and  even  Gen- 
eral Rodman,  make  light  of  the  disappointed  affection  of  Colonel 
Buford  in  his  early  life.  True  it  is  that  he  sits  there  to-day,  soli- 
tary and  alone,  a  childless  man.  True  it  is  that  about  that  ances- 
tral tree  cluster  only  himself  and  brothers,  and  they  are  childless 
men.  True  it  is  that  the  condemnation  provided  by  Heaven  on  the 
intermarriage  of  close  relations  has  fallen  upon  the  first  generation, 
and  when  they  die  they  are  the  last  of  their  line.  Gentlemen, 
some  twenty  years  ago  he  was  captivated  by  the  beauty  and 
accomplishments  of  a  Kentucky  lady.  He  believed  himself  accept- 
able to  her,  and  the  wedding  day  was  set.  Every  preparation  was 
made  for  it,  but  at  the  last  moment  she  rejected  him  on  the  advice 
of  her  friends,  because  they  did  not  believe  him  to  be  of  a  sound 
mind.  And,  great  God  !  in  this,  the  supreme  hour  of  his  life;  in 
this,  the  hour  of  his  great  affliction,  with  all  these  years  of  despair 
and  sentiments  of  prejudice  combined  to  crush  him,  is  it  in  the  heart 
of  any  advocate — can  it  come  from  the  lips  of  any  advocate  to 
charge  to  his  prejudice  one  of  the  sincerest  attachments  that  ever 
graced  the  life  of  any  man  ?  How  do  we  know  but  what,  if  he  had 
met  his  destiny  in  that  woman,  instead  of  being  here  in  this  mortal 
perili  he  might  have  been  so  controlled,  so  influenced  and  so  direc- 
ted, that  instead  of  being,  as  it  has  turned  out,  a  terror  to  society, 
he  might  have  been  one  of  its  ornaments  and  one  of  its  prides. 
How  can  my  friends  on  the  other  side  feel  that  it  is  decorous,  that 
it  is  even  decent,  to  make  sport  and  humor  for  a  miscellaneous 
auditory  of  the  disappointment  of  one  of  the  greatest  and  divinest 
feelings  in  the  human  heart  ?  And  before  I  trace  my  steps  in  the 
direction  of  Dr.  Chipley,  let  me  say  a  word  in  relation  to  the  pris- 
oner's conduct  with  the  sheriff  of  Henry  county,  when  the  sheriff 
went  to  take  possession  of  the  estate. 

You  must  remember,  gentlemen  of  the  jury,  that  this  litigation 


648  MODERN  JURY  TRIALS. 

was  then  pending,  and  that,  until  the  last  final  decision  against 
him,  he  was  very  cheerful  and  confident  of  the  result.  I  ask  you, 
taking  the  evidence  that  has  been  developed  here,  was  his  conduct 
on  that  occasion  of  a  sane  or  insane  character  ?  The  very  idea  of 
the  man  setting  himself  against  the  vested  authority  of  Kentucky, 
as  represented  in  the  officer  of  the  law,  standing,  like  MacGregor, 
on  his  native  heath,  defying  its  power.  I  ask  you,  gentlemen  of 
the  jury,  in  all  candor,  is  not  that  the  act  of  a  positively  insane 
man?  But  if  there  was  not  a  skeleton  in  the  closet  of  that  litiga- 
tion, if  there  had  not  been  a  great  wrong  perpetrated  somewhere,  a 
wrong  which,  like  blood,  may  yet  cry  from  the  ground,  would  they 
have  made  the  arrangement  with  him  for  him  to  retain  his  posses- 
sion ?  They  had  not  yet  received  the  fiat  of  the  law  which  gave 
then  absolute  supreme  control  and  possession  of  the  estate,  which 
he  did  not  purchase  as  a  speculation,  but  which  he  bought 
to  make  a  home  for  his  sister  and  kindred.  And  is  it  pos- 
sible that,  before  so  intelligent  a  jury  as  this,  such  comments 
can  be  seriously  made;  and  is  it  possible  that  the  learned  gentle- 
men, distinguished  in  their  profession  for  the  arts  of  advocacy,  can 
believe  that  they  will  make  an  impression  ?  As  I  said  to  you  before 
the  recess,  I  repeat,  Dr.  Chipley  proved  our  case,  even  though 
called  by  the  prosecution.  The  question  was  put  to  him — and,  in 
order  that  this  discussion  may  be  fresh  in  your  minds,  I  repeat  it — 
if  he  labored  under  the  hallucination  that  he  communicated  with 
the  spirit  of  his  sister,  what  does  that  thing  indicate  ?  And  you 
must  remember  that  at  the  time  Mrs.  Merriwether  conversed  with 
him  on  this  subject,  in  these  several  conversations  in  her  house,  his 
sister  had  been  years  in  her  grave;  she  had  been  laid  away  in  the 
cemetery  of  Eminence,  and  her  spirit,  relieved  from  the  war  and 
torments  of  this  life,  had  gone  to  seek  the  shelter  of  the  great  cen. 
tral  bosom.  I  say  the  question  was  put  to  him,  "  What  do  you 
think  that  indicates?"  The  answer  was,  "Insanity;  it  indicates  a 
delusion,  and  a  delusion  is  insanity."  I  care  not  for  the  oft-repeated 
declaration  of  Dr.  Chipley,  "But  he  is  not  insane;  but  he  is  not 
crazy,  but  that  does  not  prove  that  he  is  crazy,"  for  if  I  establish 
to  you  by  the  admissions  of  Dr.  Chipley,  whom  I  intend  to  treat 
with  the  most  perfect  respect,  that  he  concedes  all  the  attributes 
and  elements  that  constitute  insanity  were  here,  then  he  himself 
proves  our  case. 

What  is  the  doctrine  as  understood  over  the  civilized  world  in 
regard  to  these  hallucinations?  I  make  no  controversy  with  anj 
man's  religious  belief  ;  I  make  no  controversy  with  any  man's 
religious  sentiments — that  is  a  sacred  thing,  between  his  own  heart 


BUFORD-ELLIOTT  CASE.  649 

and  his  Maker.  But  what  the  law  has  declared,  what  the  princi- 
ples of  science  have  declared  to  be  the  truth,  you,  as  jurors,  must 
on  this  occasion  receive.  And,  as  I  stated,  may  it  please  the  court, 
in  the  opening  of  my  address  to  the  jury  the  other  day,  it  has 
been  the  settled  law  in  American  jurisprudence  ever  since  the 
pioneer  case  in  this  country  in  1843 — the  case  of  The  Common- 
wealth v.  Rogers,  tried  in  Massachusetts — that  where  that  state  ol 
mind  is  established  to  exist,  is  found  to  exist,  then  there  is  no 
question  of  the  insanity  of  the  person  so  afflicted.  That  is  the 
doctrine  of  all  the  experts;  that  is  the  doctrine  of  all  the  medical 
writers ;  that  is  the  doctrine  of  the  text  books ;  that  is  the  doc- 
trine of  the  law.  And  it  is  the  principle  of  law,  and  of  medical 
jurisprudence,  which  applies  not  only  on  this  side  of  the  Atlantic, 
but  it  applies  to  all  Christian  jurisprudence,  to  civilized  jurispru- 
dence, wherever  it  is  administered.  It  was  when  Dr.  Chipley's 
mind  was  brought  to  that  point  that  he  saw  the  dilemma  in  which 
his  previous  testimony  had  left  him.  He  saw,  when  he  conceded 
that  it  was  a  delusion,  that  he  was  conceding  that  it  was  insanity. 
And  General  Rodman  made  a  remark  in  connection  with  this 
branch  of  the  case,  to  which  I  briefly  refer.  He  says  :  "  Suppos- 
ing that  he  did  hear  the  spirit  of  his  sister,  do  you  believe  that 
this  spirit  of  that  sister  ever  told  him  to  kill  Judge  Elliott  ? " 
Who  has  ever  contended  that  he  heard  her  spirit?  Who  has  ever 
contended  that  he  heard  her  voice  ?  But  he  believed  he  did,  and 
in  that  consisted  the  hallucination — in  that  consisted  the  insanity. 
Why,  gentlemen  of  the  jury,  could  there  be  any  more  positive 
evidence  to  the  mind  of  a  calm  and  rational  being  of  the  insanity 
of  an  individual  than  that  he  believed  his  acts,  his  utterances,  his 
declarations  were  governed  by  the  voices  of  the  unseen  world  ? 
We  have  our  theology  ;  it  is  founded  upon  the  Rock  of  Ages. 
Our  theology  is  the  Christianity  propounded  by  the  Saviour,  and 
he  has  told  us  under  what  circumstances  we  shall  see  his  face,  and 
under  what  circumstances  we  shall  be  cast  into  utter  darkness. 
It  is  against  Christianity,  it  is  against  law,  it  is  against  medical 
science  to  believe  in  the  existence  of  communication  between  this 
land  and  the  land  of  shadow.  And  by  the  combined  voices  of 
Christianity,  law  and  science,  it  has  been  decreed  that  a  man  who 
sincerely  believes  in  that  hallucination  has  left  the  anchorage  of 
his  mind,  and  is  but  a  pauper  in  the  mental  world.  I  say,  gentle- 
men, from  that  there  is  no  escape.  But  another  thing  to  which  I 
will  briefly  allude.  You  remember  that  I  asked  Dr.  Chipley  upon 
the  stand  this  question  :  "Does  long  and  protrated  emotion  tend 
to  produce  insanity  ?  "  After  a  series  of  arguments,  shif tings  and 


650  MODERN  JURY  TRIALS. 

evasions,  and  the  continual  injections  of  "Well,  he's  not  crazy" — 
that  seems  to  be  his  dominant  idea — as  the  result  of  his  premises 
he  admitted  that  that  was  true.  Was  Colonel  Buford  under  long 
and  protracted  emotion?  Did  not  that  controversy  last. over  ten 
years  ?  Was  he  not  lifted  by  its  varied  history,  by  its  checkered 
career,  from  the  depths  of  despair  to  the  ecstacies  of  hope?  And 
was  it  not  proved  by  a  cloud  of  witnesses,  not  only  for  the  accused 
person,  but  on  the  part  of  the  prosecution — was  it  not  proved  that 
it  was  with  him  the  constant  subject  of  conversation?  Was  it 
not  natural  that  it  should  be  ?  All  the  fixed  recollections  of  his 
life,  outside  of  the  Woodford  home,  clustered  around  that  estate 
in  Henry.  There  his  sister  lived;  there  she  lived  her  life  of  purity, 
of  honor  and  of  usefulness;  and  there  she  died,  and  from  its  por- 
tals her  mortal  remains  were  taken,  and  on  that  sacred  spot  he 
took  his  last  earthly  view  of  that  dead  sister.  God  grant,  in  His 
infinite  mercy,  that,  if  your  verdict  be  the  strangulation  of  this 
poor,  afflicted  man,  he  may  meet  her  in  heaven.  For  I  do  believe 
that  in  the  book  of  the  Recording  Angel  he  is  not  charged  with 
those  deeds  which  have  not  been  the  offspring  of  malicious  pur- 
pose and  malign  intent,  but  of  the  tropical  growth  of  a  diseased 
mind  and  perverted  understanding.  How  did  the  Saviour  himself, 
while  on  earth,  treat  the  insane  ?  He  cast  the  insanity  or  the  Devil 
out.  Did  He  place  them  in  the  stocks  ?  Did  He  place  them  in 
prison?  Did  He  consign  them  to  the  scaffold?  Did  He  expose 
them  to  infamy,  to  scorn  ?  No,  but  in  the  benign  purity  of  His 
celestial  heart,  He  took  compassion  on  their  condition;  He  exorcised 
them.  And  can  you  have,  in  the  whole  range  of  the  civilized 
world,  an  example  more  striking,  more  controlling,  than  the  exam- 
ple of  the  Redeemer? 

Gentlemen  of  the  jury,  I  think  you  will  agree  with  me  without 
any  further  argument,  that  he  was  under  long  and  protracted  emo- 
tion. Follow  me  farther,  and  I  challenge  you,  on  your  oaths  and 
your  consciences,  to  remember  that  this  was  the  question  that  was 
put;  and  I  challenge  you  on  your  oaths  and  your  consciences,  to 
remember  that  the  answer  I  am  about  to  give  was  the  one  that  was 
received  :  "Do  grief  and  sorrow,  do  love  and  hatred  tend  to  pro- 
duce insanity?"  He  did  not  answer  the  question  as  originally  put: 
"  Do  they  tend  to  lessen  the  grasp  of  the  reason  upon  the  mental 
faculties?"  After  many  evasions,  and  shifting  and  argument,  on 
his  part,  he  finally  admitted  that  they  did.  Well,  then,  if  that  be 
so,  the  very  export  that  they  have  brought  here,  irrespective  and 
despite  his  continual  exclamation,  "  he  is  not  crazy,"  has  proven 
that  Buford  was  insane. 


BUFORD-ELLIOTT  CASE.  651 

The  fact  stands  like  a  light-house  in  the  sea,  and  the  prosecution 
aan  not  recede  from  it.  I  believe,  gentlemen  of  the  jury,  that  this 
principle  which  I  have  just  enunciated,  in  which  the  whole  legal 
and  medical  world  concurs,  is  the  one  that  controls  your  delibera- 
tions, and  if  you,  as  honest  men,  as  you  are,  take  the  testimony 
of  Dr.  Chipley  as  given,  you  must  come  to  the  conclusion  that 
those  elements  of  the  mind  existed  that  in  the  language  of  the  law, 
and  of  the  medical  science,  constitute  insanity.  He  is  aged,  gen- 
tlemen, and  I  have  no  doubt  that  the  tribute  that  Col.  Brecken- 
ridge  paid  to  him  is  deserved.  Honor  thy  father  and  mother,  says 
one  of  the  commandments,  and  in  the  same  spirit  of  veneration, 
far  distant  be  the  day  when  I  shall,  by  intimation  or  insinuation, 
cast  scorn  and  contumely  upon  gray  and  venerable  hairs.  That  he 
intended  to  do  mischief  I  disbelieve  ;  that  he  has  done  us  great 
service  I  do  know. 

And  his  statement  that  his  conclusion  is  different  from  his 
premises  is  attributable,  in  my  mind,  to  the  numerous  cares  and 
anxieties  with  which  his  life  is  checkered.  He  is  an  old,  a  vener- 
able man,  and  it  is  possible  that  even  his  originally  strong  mind, 
from  its  constant  contact  and  association  with  the  insane,  is  slowly, 
gradually  slipping  away  and  breaking  up.  Why,  the  great  Dr. 
Gray  stated  to  me  that  he  had  spent  forty  years  of  life  in  the 
investigation  of  and  practical  experience  in  this  science,  and  that 
he  still  stood  on  the  seashore  of  its  knowledge.  Dr.  Gray  could 
explain,  perhaps,  that  peculiarity  in  the  mind  of  Dr.  Chipley,  which 
struck  painfully  and  sharply  on  my  understanding  and  on  my 
heart.  And  I  say  it  with  all  frankness,  and  still  with  all  respect, 
that  I  stand  appalled  when  I  consider  that  upon  testimony  such  as 
this,  upon  the  testimony  of  Dr.  Chipley,  such  as  this  is,  that  a 
human  life  is  to  depend.  I  stand  appalled  that  the  estates  and 
lives  of  citizens  are  in  such  keeping.  Now,  gentlemen  of  the  jury, 
from  all  these  observations  with  regard  to  Dr.  Chipley,  who,  I 
declare,  is  substantially  for  all  the  purposes  of  this  investigation 
our  witness,  I  ask  your  attention  for  a  few  moments  to  the  testi- 
timony  of  Dr.  Bell. 

The  law,  in  its  wisdom,  has  created  what  is  known  as  expert 
testimony.  A  person  may  know  how  to  build  a  wagon,  and  still 
not  know  how  to  shoe  a  horse.  Would  you  not  give  more  weight 
to  the  opinion  of  a  person  who  had  been  experienced  in  a  particu- 
lar business  than  you  would  to  one  who  had  no  such  experience  ? 
That  is  only  natural.  That  is  the  principle  of  law.  That  is  the 
sentiment  of  society.  Dr.  Bell,  says  Gen.  Rodman,  ought  to  be 
kicked  out  of  the  courts  of  Kentucky.  Dr.  Bell,  says  Gen.  Rod- 


652  MODERN  JURY  TRIALS. 

man,  fifty  years  ago,  would  have  been  kicked  out  of  the  courts  of 
Kentucky.  Remember  that  venerable  man  as  he  appeared  before 
you.  One  of  the  greatest  scientists  that  has  ever  lived  in  the 
state  of  Kentucky.  A  man  who  has  conferred  as  much  renovrn 
upon  this  commonwealth  as  Henry  Clay  in  his  avocation.  Kick 
him  out  of  court,  and  for  what?  Because  he  did  not  come  here 
and  clamor  that  a  senseless  human  being  whom  God  Almighty  had 
seen  fit  to  afflict,  should  be  sent  to  the  scaffold  or  the  penitentiary. 
Kicked  out  of  court,  and  for  what  ?  Because  he  unfolded  to  us, 
with  generous  lips  and  feeling  heart,  the  great  stores  of  learning 
that  he  has  garnered  and  treasured  up.  Kicked  out  of  court,  and 
for  what  ?  Because  he  shed  a  ray  of  light  upon  the  doom  of  that 
unhappy  man  ;  because  he  held  up  the  index-finger  of  science  and 
forbade  you  and  the  law  and  its  ministers  to  crucify  him.  Kicked 
out  of  court,  and  for  what  ?  Because  he  has  enriched  the  medical 
science  of  this  country  and  the  world  ;  because  his  views,  as 
expressed  by  word  of  mouth,  and  in  the  writings  of  his  life,  have 
been  embodied  into  the  views  of  the  great  text-writers  of  the 
world.  Gentlemen,  is  that  candid  treatment ;  for  so  venerable,  so 
able  a  man  as  Col.  Breckenridge  did  not  find  it  in  his  heart  to  Bay 
that;  Col.  Breckenridge  did  not  find  it  in  his  heart,  when  that  ven- 
erable old  gentleman  was  far  away,  to  throw  after  him  a  sneer, 
reproach  or  denunciation.  And  what  will  be  the  feeling  of  the 
cultured  world  ?  What  will  be  the  feeling  of  the  people  of  Ken- 
tucky when  such  presses  as  the  Courier-Journal,  the  Enquirer,  the 
Commercial,  the  Gazette,  all  those  types  of  Western  journalism, 
flash  out  these  things  to-morrow — that  the  prosecuting  officer, 
thirsting  and  vindictive  for  the  blood  of  an  insane  man,  has  offered 
dishonor  to  gray  and  venerable  hairs  ?  But  what  is  Dr.  Bell's  tes- 
timony? He  says  that  he  came  here  with  his  mind  free  from 
impression  as  a  piece  of  white  paper.  He  sat  here  patiently  and 
listened  to  most  of  the  evidence,  and  that  which  he  did  not  hear 
was  read  to  him  by  my  brother  Settle.  And  he  says,  after  a  careful 
consideration  of  that  testimony,  that  the  defendant  is  insane. 
Nobody  casts  reproach  upon  his  sincere  desire  to  tell  the  truth.  No; 
but  this  man  who  is  recognized  in  two  continents  as  one  of  the  best 
mental  delineators  in  the  world,  is  treated  by  Gen.  Rodman  as 
though  he  were  a  bandit  and  assassin. 

Now,  what  does  Dr.  Bell  say  relative  to  the  mental  condition  of 
the  prisoner?  That,  in  his  judgment,  there  is  no  doubt  of  his 
insanity.  The  law  recognizes  experts;  the  prosecution  recognizes 
experts,  because  it  brought  Dr.  Chipley  here.  And  it  is  not  a 
question  of  professional  rivalry  between  the  two  gentlemen.  It  is 


BUFORD-ELLIOTT  CASE.  653 

a  question  of  immortal  truth  and  scientific  principles  applied  to 
existing  facts.  What  is  the  character  of  his  insanity  ?  Gen.  Rod- 
man would  have  you  believe  that  Dr.  Bell  testified  that  he  was  cot 
intellectually  insane.  Dr.  Bell's  exact  words  were  these  :  "There 
can  be  no  insanity  without  the  involvement  of  the  intellectual  fac- 
ulties." They  have  tried  to  belittle  this  case  by  declaring  that  Dr. 
Bell  asserted  that  the  mental  infirmity  of  Col.  Buford  was  what 
is  typified  as  moral  insanity,  and  Col.  Breckenridge,  in  illustration 
of  his  ideas  on  that  subject,  has  spoken  to  us  about  the  mythical 
tiger,  and  about  the  mythical  den  in  the  city,  and  then  about  the 
young  man  risking  his  own  money,  and  then  risking  the  money  of 
his  employer.  Well,  the  Colonel  gives  such  a  vivid  picture  of 
those  scenes  that,  although  I  have  never  witnessed  one  of  them,  it 
is  no  doubt  the  correct  one.  However,  it  is  impossible  that  Col. 
Breckenridge's  eyes  could  have  rested  on  such  a  scene,  and,  doubt- 
less, his  illustration  is  drawn  from  hearsay.  Now,  how  infinitely 
small,  how  infinitely  trivial  and  mean,  is  such  an  illustration  as 
that.  Then  he  said  something  about  a  rich  woman  taking  a 
bundle  of  silk  and  a  poor  woman  taking  a  bundle  of  linen.  The 
object  was  to  inject  into  the  breast  of  this  jury  a  prejudice.  Gen. 
Rodman  said  that  we  contended  that  a  poor  man  was  never  insane. 
We  never  contended  anything  of  the  kind — never  said  anything  of 
the  kind.  Mental  affliction,  gentlemen,  comes  from  heaven.  It  is 
like  the  rain.  It  falls  upon  the  just  and  the  unjust.  It  falls  upon 
the  rich  and  the  poor.  In  the  inscrutable  decrees  of  Providence, 
the  victim  is  doomed  to  an  early  death.  But,  I  repeat,  how  small 
are  such  efforts  in  the  presence  of  this  tremendous  issue !  A 
human  life  is  passing  through  twelve  brains.  The  gaze  of  the 
world  is  on  Owen  county  ;  the  eye  of  the  culture  of  the  planet  is 
on  you.  What  you  mete  out  here,  perhaps,  may  be  meted  out  to 
you. 

To  return  to  Dr.  Chipley.  What  is  called  moral  insanity,  says 
Dr.  Chipley,  is  moral  depravity.  Correcting  himself,  he  says  : 
"There  is  no  such  thing  as  moral  insanity."  In  giving  a  definition 
of  moral  depravity,  however,  he  gives  the  definition  of  Dr.  Pritoh- 
ard  of  moral  insanity.  There  the  president  of  the  Sanitarium  is 
again  caught  in  the  net.  Now,  all  that  I  contend  for  in  that  regard 
is  this  :  "You  may  call  it,  as  his  honor  calls  it — monomania  ;  you 
may  say,  as  Dr.  Bell  and  Dr.  Chipley  and  a  great  many  other 
writers  say,  that  that  element  of  mental  infirmity  does  not  exist. 
Denominate  it  by  its  simplest  term,  aberration  of  the  mind,  and 
then  what  is  known  as  moral  insanity,  what  is  known  as  mono- 
mania, with  all  these  subdivisions,  is  simply  a  disease  of  a  portion 


654  MODERN  JURY  TRIALS. 

of  the  functions  of  the  mind,  which  God  put  in  man  for  the  noblest 
purposes.  Another  thing  which  appears  from  this  evidence,  and 
it  is  a  law  set  up  in  medical  jurisprudence,  and  it  has  become  the 
law  in  every  country  where  civilized  jurisprudence  is  administered, 
that  monomania — -we  will  take  his  honor's  term  for  the  purpose  of 
this  discussion,  because  we  want  to  get  within  his  honor's  ruling — 
that  monomania,  while  it  may  be  concealed,  can  never  be  feigned, 
can  never  be  simulated.  Disease  in  the  mind  to  the  extent  that 
all  the  faculties  seemed  warped  and  perverted  to  one  end,  a  person 
may  be  able  to  conceal  that  affection  from  the  closest  scrutiny, 
but  he  can  never  feign  or  simulate  it.  In  other  words,  he  cannot 
impress  others  that  he  is  so  afflicted  for  any  purpose  that  he  may 
have ;  and  you  may  take  the  long  galaxy  of  medical  stars,  take 
the  long  galaxy  of  writers  from  the  beginning  down  to  the  present, 
and  they  are  all  concurrent  in  the  view,  and  it  forms  a  stream  of 
scientific  opinion.  And  what  are  we,  you  and  I,  that  we  should 
set  ourselves  up  against  men  who  have  spent  their  lives  in  the  dis- 
cussion and  examination  and  experience  of  this  subject. 

I  desire  especially  to  speak  in  vindication  of  Dr.  Kennedy,  not 
that  he  needs  it.  Now,  my  friend  Gen.  Rodman,  and  I  desire  to 
say  nothing  personally  disrespectful  of  him,  raised  a  great  laugh 
the  other  day,  Saturday,  over  what  he  termed  the  singular  argu- 
ments of  the  sage  of  Batavia.  A  good  actor  is  my  friend,  General 
Rodman.  As  he  swuug  round  he  caught  the  merry  twinkle  in  his 
honor's  eye,  and  he  affected  to  laugh  heartily;  but  whether  that  be 
an  impossibility  in  his  nature,  I  do  not  pretend  to  say.  Before 
that  laugh,  like  the  chuckle  of  John  Willett,  had  died  out  in  his 
stomach,  he  became  the  same  relentless,  remorseless  prosecutor  as 
before.  What  was  all  that  laughter  caused  by  ?  It  appears  that 
Dr.  Kennedy  is  president  of  the  Ohio  State  Medical  Society,  and 
that  he  had  written  a  pamphlet,  not  for  general  distribution,  but 
for  circulation  among  the  profession,  which  is  usual  and  ordinary 
when  new  views  are  advanced  to  the  profession  for  mutual  discus- 
sion and  advantage.  Well,  I  have  often  heard  that  Gen.  Rodman 
is  a  very  able  tactician,  but  how  he  ever  got  possession  of  one  of 
the  pamphlets  I  don't  know.  But  what  does  that  amount  to  ? 
simply  that  the  general,  and  I  say  it  with  all  respect,  has  great 
ignorance  of  medical  terms,  and  not  only  did  not  know  the  mean- 
ing of  the  words  he  read,  but  pronounced  them  incorrectly;  and 
the  very  words  and  the  very  technical  terms  employed  in  this 
much-abused  pamphlet,  mind  you,  are  not  those  of  Dr.  Kennedy, 
but  they  are  the  scientific  expressions  of  the  greatest  writers  of  the 
whole  world.  But  Gen.  Rodman  thought  that  perhaps  he  could 


BUFORD-ELLIOTT  CASE.  655 

•timulate  the  auditory;  he  himself  wanted  a  rest,  and  he  thought 
that,  by  the  subtle  relation  that  seems  to  exist  between  the  jury 
and  the  audience,  by  exciting  a  broad  and  general  laugh,  he  could 
give  us  a  violent  stab  in  a  mortal  part.  It  was  to  the  mind  of  a 
man  who  was  informed  on  the  subject,  I  regret  to  say,  a  lamentable 
display  of  human  ignorance.  And,  of  course,  as  everywhere  on 
earth  when  ignorance  opposes  its  brazen  front  against  the  calm 
brow  of  intelligence,  it  is  with  a  laugh,  to  captivate  the  multitude; 
and  poor  Dr.  Kennedy,  who  has  been  so  much  abused,  really  did 
not  originate  a  single  medical  term  in  the  whole  pamphlet.  Now, 
out  of  that  tremendous  Frankfort  mountain  peeps  that  little,  mis- 
erable mouse. 

What  is  the  doctrine  inculcated  in  that  pamphlet?  Simply 
some  views,  original  in  their  character,  which  Dr.  Kennedy 
had  upon  the  subject  of  mental  affections,  in  which  he,  differing 
from  the  received  idea  that  the  impression  is  made  upon  the  part 
diseased,  contended  that  the  impression  was  carried  to  the  part 
diseased  by  the  external  arteries  of  communication.  Well,  how 
has  the  medical  world  been  affected  by  them?  The  London  Lancet 
has  adopted  his  view.  I  see  that  a  learned  German  savant  has 
done  the  very  same  thing.  And  while  General  Rodman,  elated 
with  the  hope  of  victory,  is  laughing  at  Dr.  Kennedy  in  the  county 
of  Owen,  one  little  spot  in  the  United  States,  the  ideas  generated 
by  Dr.  Kennedy  are  passing  through  the  minds  and  receiving  the 
grave,  calm,  dispassionate  consideration  of  the  first  scientific  intel- 
lect of  the  world.  True,  he  is  an  elderly  man.  He  speaks  quickly. 
His  face  is  that  of  an  aged  person.  I  submit  that  this  is  not  a 
shambles  in  which  the  butcher  stands  and  stabs  the  victim,  either 
to  the  applause  of  the  multitude  or  that  of  his  associates.  This  is 
a  most  stern,  tremendous  business  ;  a  business  which  you  little 
thought,  when  you  were  children,  you  would  ever  have  any  hand 
in.  You  have  not  your  peers  on  earth  at  this  hour.  Not  only  do 
you  hold  a  man's  life  in  your  keeping,  but  perhaps  the  immortal 
soul!  But. you  decide,  also,  by  your  verdict,  great  questions  that 
affect  the  body  politic — questions  that  affect  the  body  of  society. 
It  is  to  declare  whether  a  man,  hunted  and  persecuted  and  insane, 
is  to  be  destroyed;  whether  such  a  person,  brought  to  the  verge  of 
destruction  by  trouble,  is  to  offer  up  his  life  to  vindicate  the 
majesty  of  the  law  never  violated,  because  the  law  says  an  insane 
man  can  do  no  crime.  The  law  demands  of  you,  the  Rtate  of  Ken- 
tucky demands  of  you,  that  this  man's  life  be  spared. 

What  does  Dr.  Kennedy  say  ?  Why,  he  goes  even  further  in 
•ome  respects,  and  I  never  like  to  see  witnesses  on  their  military 


666  MODERN  JURY  TRIALS. 

alignment,  and  you  must  expect  in  the  difference  of  constitutions 
that  exist  in  different  men,  that  there  will  be  variations  in  conclu- 
sions reached,  even  in  scientific  minds,  upon  facts  presented.  But 
he  swears  to  you  that  this  man  is  insane;  and  he  swears  to  you  that 
if  you  send  him  to  the  gallows,  that  if  you  put  him  in  Kentucky's 
hell  at  Frankfort,  a  judicial  crime  will  be  committed,  because  yon 
have  sworn  to  true  deliverance  make  between  him  and  the  people. 
And  I  ask  you,  which  is  the  more  horrible  assassination:  that  of 
Judge  Elliott,  slain  under  even  circumstances  of  such  atrocity  aa 
he  was,  or  the  assassination  of  a  lunatic  by  the  verdict  of  twelve 
honest  men  ?  Before  Almighty  God,  his  crime  is  white  with  yours, 
if  you  do  thatl  There  will  be  no  excuse,  no  plea,  for  you.  For 
you  there  can  be  no  escape.  You  are  not  insane — you  are  intelli- 
gent men.  God  has  given  you  reason;  has  never  afflicted  you- 
But  take  his  life.  I  would  not  have  your  consciences  for  all  this 
world.  Now,  in  reference  to  lay  witnesses,  and  his  honor  has 
ruled,  and  for  the  purposes  of  this  trial  in  this  place  that  rule  is 
controlling  on  me,  that  a  physician,  not  an  expert,  can  only  testify 
as  a  lay  person.  Did  you  even  hear  in  that  fragrant  discourse  of 
Col.  Breckenridge,  which  Mr.  Watterson  has  given  to  the  world 
upon  a  whole  generous  page  of  his  great  paper,  a  single  word  about 
Dr.  Gale  ?  Did  you,  in  all  the  jokes  and  witticisms  of  Gen.  Rod- 
man, in  all  his  sarcasm  when  he  was  telling  poor  Buford  about  his 
misfortunes  in  life,  about  his  lost  affections  and  his  ruined  career, 
when  he  was  speaking  of  lay  evidence,  and  picking  out  here  and 
there,  did  you  hear  him  say  a  word  about  Dr.  Gale  ?  I  did  not.  I 
do  not  suppose  there  is  a  member  of  the  jury  who  is  not  acquainted 
with  Dr.  Gale,  either  personally  or  by  reputation.  He  is  one  of 
the  most  eminent  physicians  living  to-day  in  the  city  of  Louisville. 
He  is  a  man  of  whom  Owen  county  may  be  proud.  Modest, 
unassuming,  entirely  sincere,  he  came  here  most  reluctantly;  he 
was  a  devoted  personal  friend  of  Judge  Elliott.  But  he  came  here 
in  the  discharge  of  the  highest  duty.  What  does  he  say  about  the 
accused  ?  You  must  remember,  too,  that  he  has  known  him  for 
twenty  years,  and  can  you  doubt,  when  he  testifies  as  to  the  mental 
capacity  of  the  accused,  that  the  testimony  is  based  on  good  data  ? 
Were  you  sick  to-morrow,  would  not  Dr.  Gale  be  competent  to 
attend  to  you,  whatever  your  ailment  might  be  ?  He  says,  in  that 
manly,  modest  way,  "I  have  looked  on  Col.  Buford  as  a  crazy  man 
for  twenty  years,  and  have  avoided  him."  And  that  was  the  first 
portion  of  the  proof  in  which  I  detected  any  evidence  of  this  ten- 
dency to  homicidal  mania.  A  great  deal  was  said  by  Gen.  Rod- 
man about  Dr.  Hurst,  Did  not  he  impress  you  favorably  ?  He 


BUFORD-ELLIOTT  CASE.  657 

was  not  shaken  in  his  cross-examination.  All  the  comments  made 
upon  him  by  Gen.  Rodman  were  then  justified  by  the  proof? 
What  did  he  say?  That  Buford  was  a  lunatic  almost  from  his 
mother's  womb— simply  that  he  was  a  victim  of  hereditary  insanity. 
That  is  all.  Now,  about  that  ?  You  remember  that  I  told  you  on 
that  sultry  Saturday  afternoon  on  which  I  made  the  opening  of 
this  case,  that  I  should  prove  first,  hereditary  insanity  in  this  man; 
second,  that  the  mind  of  the  accused  was  affected  by  the  pre-dis- 
posing  cause,  hereditary  insanity,  aided,  stimulated,  provoked  by 
care,  anxiety  about  business  affairs  and  overwhelming  grief  and 
disasters.  I  also  told  "you  that  I  would  prove  the  hallucination 
that  he  communicated  with  his  sister.  All  these  things  have  I 
done,  and  yet  with  a  wanton — it  seems  to  me — disregard  of  the 
proof,  Gen.  Rodman  says  that  hereditary  insanity  has  not  been 
proven.  Dr.  Bell  says  that  it  has.  Dr.  Kennedy  says  that  it  has. 
The  proof  says  that  he  is  insane,  and  that  his  insanity  is  hereditary, 
and  the  idea  that  it  can  only  come  from  the  immediate  parents  is 
an  illusion  that  does  not  exist  in  the  mind  of  any  well-informed 
medical  man. 

Why,  sirs,  there  are  peculiarities  in  horses  that  go  back  for 
generations.  You  will  see  the  descendants  of  old  Boston  on  the 
turf,  showing  not  only  the  physical  peculiarities  of  their  famous 
ancestor,  but  his  sullenness,  his  obstinacy.  With  the  human 
family,  mental  infirmity  may  lapse  a  generation,  it  may  lapse 
two,  but  still  it  is  there,  and  none  but  the  great  God  can  cure  or 
amend  it.  Now,  to  the  medical  mind,  it  is  sufficient  proof  that  a 
mere  collateral  branch  of  the  family  had  three  imbeciles.  They 
know  nothing  of  the  sorrows  of  this  life.  When  God  permits  the 
creation  of  such  unfortunate  beings,  it  seems  as  though,  with  the 
hand  of  Divine  pity,  he  clouded  their  understandings,  but  when  he 
permits  the  creation  of  the  lunatic,  he  may  gift  him  with  the 
greatest  qualities  of  the  human  intellect  and  human  heart,  but  still 
they  will  be  inoperative  and  ineffectual  by  reason  of  this  leprosy  in 
the  blood.  Mrs.  Allen,  the  sister,  died  a  raving  maniac.  Sinclair 
Buford,  the  brother,  was  slain  at  Versailles,  because  he  was  a 
maniac,  by  a  person  who  stood  in  fear  of  him.  He  was  insane  at 
the  time,  as  he  was  declared  to  be.  You  have  heard  the  testimony 
of  Dr.  Hurst  and  Gen.  A.  Buford,  and  I  repeat,  without  detaining 
you  further  on  this  branch  of  the  case,  that  it  is  proven  in  medical 
science  by  the  experts,  and  therefore  in  law  as  well  as  in  fact,  that 
this  taint  of  insanity  exists  in  that  family;  that  it  has  been  a  mat- 
ter of  notoriety  for  years  in  the  vicinity  of  Woodford.  You 
remember  another  thing,  gentlemen,  that  many  of  these  witnesses 
42 


658  MODERN  JURY  TRIALS. 

who  testified  for  the  prosecution,  and  who  say  that  he  was  not,  in 
their  opinion,  insane,  had  not  seen  him  for  ten  or  fifteen  years  after 
he  moved  from  the  county;  and  of  course  their  testimony  is  of  a 
negative  character.  For  instance,  you  may  know  of  events  and 
acts  in  a  man's  career  when  a  hundred  men  can  be  found  who  will 
swear  that  they  know  nothing  of  them,  and  have  never  seen  them. 
That  is  negative  testimony.  Now,  all  their  proof  of  his  being  sane 
from  beginning  to  end  is  negative  averment,  and  that  to  the  mind  of 
the  lawyer  and  medical  man  is  of  no  worth.  I  do  not  care  whether 
there  are  twenty-three  witnesses  on  one  side  and  forty-five  on  the 
other.  The  preponderance  of  evidence  does  not  necessarily  exist 
with  the  greatest  number  of  witnesses.  It  has  more  to  do  with  the 
credibility  aud  veracity  of  witnesses,  and  although  we  have  so  far 
the  greater  number  of  witnesses,  the  doctrine  of  law  is  as  I  stated 
it  to  the  best  of  my  understanding,  and  I  believe  that  we  not  only 
have  preponderance  in  numbers,  but  by  far  we  outweigh  their  evi- 
dence in  veracity,  reliability  and  character. 

Gentlemen  of  the  jury,  I  approach  another  topic,  and  you  must 
pardon  me  if  I  take  more  of  your  time  than  you  think  I  ought,  for 
you  must  remember  I  am  pleading  for  a  human  life,  and  then  I  am 
invested  with  a  supreme  responsibility.  I  am  here  on  my  oath  of 
office,  as  you  are  here  on  your  oaths  of  office,  and  if  I  omit  to  call 
your  attention  to  anything  material,  and  your  decision  should  be 
adverse,  it  would  be  to  me  a  matter  of  unfailing  and  life-long 
regret.  It  would  pursue  me  all  my  future  life;  it  would  haunt  me 
in  the  long  watches  of  the  night  and  to  the  end  of  my  existence. 
All  I  can  do  is  to  do  my  whole  duty,  and  to  leave  the  consequences 
to  you  and  God  who  overrules  all.  The  great  stress  of  the  prose- 
cution will  be  laid  upon  this,  that  this  man  is  a  sane  person  because 
he  meditated  the  crime.  This  is  as  weak  as  the  other  links  in  this 
chain.  Dr.  Chipley  told  you,  Dr.  Bell  told  you,  the  history  of 
criminal  jurisprudence  will  inform  you,  that  some  of  the  most  dia- 
bolical crimes  ever  committed  have  been  perpetrated  by  lunatic 
persons;  have  been  premeditated  days,  weeks,  months.  So  that 
proves  nothing  whatever.  Why,  I  was  interested  in  a  case  for  * 
man,  a  pronounced  lunatic  of  the  most  dangerous  character,  who 
had  been  incarcerated  seven  times  in  different  asylums  in  London 
and  on  the  Continent  and  twice  in  this  country.  No  care,  no  cau- 
tion could  prevent  his  final  escape.  When  you  consider  that  it  is 
far  more  difficult  to  escape  from  a  lunatic  asylum  than  from  a  penal 
institution,  you  may  imagine  with  what  sagacity,  foresight  and 
endurance  he  accomplished  his  end.  Further  than  that,  he  threat- 
ened a  year  and  a  half  before  he  attempted  the  life  of  one  of  hii 


BUFORD-ELLIOTT  CASE.  659 

London  keepers,  that  he  would  slay  him,  and  he  worked  back  from 
Vienna  to  London  for  that  purpose.  Talk  to  me  about  this  idea  ! 
Absurd  !  That  mere  premeditation  constitutes  the  element  of  a 
sane  mind  !  Why,  some  of  the  insane,  until  you  touch  the  subject 
of  their  delusion,  are  the  most  subtle,  the  most  competent  and  the 
most  scheming  persons  in  the  world.  Remember  that  example 
given  by  Col.  Thompson  the  other  day  of  the  lunatic  who  deliv- 
ered his  keeper  into  custody.  Thus  you  see  that  the  law  declares, 
medical  science  declares,  that  premeditation  does  not  necessarily  or 
by  any  means  carry  with  it  the  idea  that  a  person  is  sane. 

Come  down  to  this  tragedy.  If  he  had  been  a  sane  person,  would 
he  have  invited  the  world  to  witness  that  he  intended  to  take  the 
life  of  Judge  Elliott  ?  If  he  had  been  a  sane  person,  would  he 
have  communicated  the  deadly  purpose  of  his  mind  as  has  been  tes- 
tified to  you  ?  His  mind  was  diseased  upon  the  subject  of  this  suit. 
Not  for  one  moment  in  his  waking  hours  could  he  drive  its  dread 
presence  from  the  temple  of  his  reason.  Is  not  that  abundantly 
proven  over  and  over  again  V  It  is  proven  that  he  saw  but  one 
thing;  that  is  the  conclusion  from  the  evidence,  and  it  is  resistless. 
Believing  himself  despoiled,  seeing  his  property  wrested  from  him, 
and  despairing  of  any  relief,  it  was  in  that  diseased  state  of  mind 
that  these  threats,  having  no  particular  purpose  or  relation  to  any 
particular  individual,  issued  from  his  lips. 

One  thing  while  I  remember  it.  General  Rodman  told  you  that 
when  his  sister  died  the  case  had  been  reversed.  Not  so.  The 
case  had  been  decided  against  her,  and  she  had  simply  gained  a 
rehearing.  It  was  simply  the  privilege  to  go  the  old,  thorny  path 
over  again,  with  this  ignis  fatuus  of  possible  justice  and  relief  at 
the  end  of  it.  It  was  the  harassing  character  of  that  litigation 
from  the  beginning  that  broke  her  bright  and  sensitive  spirit.  I 
say  that  was  the  central  domination  of  his  mind.  He  goes  to 
Frankfort.  Why  ?  He  was  dispossessed  of  his  Henry  county 
home.  He  was  ejected  from  the  soil  on  which  he  had  hoped  to 
live,  and  in  which  he  had  hoped  to  lay  his  bones.  His  sister  is 
dead.  He  is  alone  in  the  world.  Like  an  irresistible  attraction 
and  fascination,  this  suit  pending  in  Frankfort  drew  him  there, 
because  outside  of  that  place  he  had  no  interest.  That  is  what 
brought  him  there,  and  I  do  not  believe,  except  in  a  general  way, 
that  the  intention  and  the  design  to  slay  this  man  ever  entered  his 
mind  until  the  adverse  decision  came. 

The  fact  of  his  sparing  Prior  on  account  of  his  children,  while  it 
indicates  a  choice,  does  not  establish  sanity.  It  was  some  relic  of 


660  MODERN  JURY  TRIALS. 

that  old  generous  and  chiralrous  nature  that  caused  pity  to  find  a 
lodgment  in  the  shadowed  chambers  of  his  mind. 

This  theory  of  Dr.  Kennedy,  of  the  gradual  working  of  insanity, 
like  heated  lava  in  a  volcano,  with  its  consequent  "  explosion,"  was 
adverted  to  by  Messrs.  Beach  and  Brady,  in  the  famous  Cole  case, 
and  their  views  have  been  adopted  in  England  in  extenso.  Such 
an  "  explosion "  did  occur  when  he  fired  the  fatal  shot  at  Judge 
Elliott,  and  when  insanity  had  relaxed  its  hold  upon  the  will, 
power  and  organs  of  his  mind,  pity  entered  his  heart.  He  put  his 
hand  under  him  saying,  "I  am  sorry;  I  had  to  do  it"  —  showing 
not  that  he  had  singled  him  out  to  die;  showing  not  that  against 
him  he  treasured  up  the  vials  of  wrath,  but  showing,  as  was  the 
truth  before  God,  that  that  rudderless  mind  had  made  its  voyage 
and  struck  upon  a  rock.  His  kissing  the  gun;  his  cool,  calm 
demeanor,  as  Dr.  Kennedy  says,  are  marks  of  an  insane  person.  I 
imagine  it  was  the  same  nonchalance,  the  same  apathetic  indiffer- 
ence, that  have  distinguished  him  through  this  trial.  He  is  fast 
approaching  that  time  when  he  will  be  insensible — his  intellect  lost 
in  dementia. 

In  the  case  of  General  Cole,  indicted  for  the  murder  of  Speaker 
Hiscock,  Mr.  Beach  and  Mr.  Brady,  two  of  the  greatest  advocates 
that  ever  lived  in  any  country  or  in  any  age,  contended  with  suc- 
cess that  the  overpowering  presence  of  sudden  and  uncontrollable 
frenzy  acting  upon  a  diseased  mind,  not  simply  right  and  wrong, 
not  the  frenzy  of  passion  simply,  but  that  mad,  irresistible  impulse, 
which  comes  when  reason  is  overthrown,  the  will  is  subdued  and 
the  conscience  palsied,  constitutes  a  legitimate  defense  of  insanity 
in  a  trial  for  homicide.  In  this  case  the  deceased  had  dishonored 
the  wife  of  the  accused,  who  had  brooded  in  melancholy  over  his 
disgrace,  and  coming  suddenly  upon  the  violator  of  his  honor,  slew 
him  in  the  very  midst  of  his  friends,  and  within  the  very  shadow 
of  the  capitol  of  Albany.  The  sight  of  Hiscock  caused  in  the  men- 
tal constitution  of  General  Cole  that  explosion,  of  which  Dr.  Ken- 
nedy so  graphically  speaks.  The  same  doctrine  was  upheld  in  the 
case  of  Wagner,  and  it  is  now  the  admitted  principle  that  controls 
this  class  of  controversies.  The  same  rule  of  law  is  declared  in 
Willis  v.  People,  and  many  others. 

As  I  have  before  observed,  the  sudden  sight  of  Judge  Elliott  by 
Buford,  the  deceased  judge  being  associated  in  the  deranged  mind 
of  the  prisoner  with  all  the  latter's  woes  and  calamities,  the  homi- 
cidal frenzy  seized  upon  the  faculties  of  Buford,  and  he  immolated 
Judge  Elliott  almost  upon  the  very  steps  of  the  tribunal  of  the 
law. 


BUFORD-ELLIOTT  CASE.  661 

You  must  not  forget,  gentlemen,  in  the  consideration  and  deter- 
mination of  this  august  issue,  the  plain  principles  of  law  and  med. 
ical  jurisprudence  that  control  it;  remember  that  it  is  established 
science  and  settled  law  that  lunacy  may  be  produced  by  profound 
and  protracted  emotion,  that  grief  and  sorrow,  as  well  as  love  and 
hatred,  can  corrupt  the  mind  with  disease  until  the  grasp  of  rea- 
son upon  the  will  is  relapsed,  the  passions  are  unloosed,  and 
man  becomes  a  wild  and  unconscious  demon.  Such  are  the  views 
expressed  by  Mandesley,  Deane,  Ray,  Gray,  Hammond,  Beck, 
Taylor,  Shelford,  Brown,  Marc,  and  the  great  Esquirol.  Such 
a  wild  and  unconscious  demon  was  Buford  on  the  twenty-sixth 
day  of  March,  raging  and  violent  in  the  streets  of  Frankfort. 
Behold  in  his  shattered  reason  pity  struggling  with  ferocity,  his 
horrible  laugh,  his  words  of  tenderness,  his  invocation  of  fate,  his 
utterance  of  regret  and  his  act  of  blood. 

Over  the  dead  body  of  the  august  victim,  he  waved  his  hand  in 
silent  and  eternal  adieu,  feeling  in  his  distempered  fancy  that  fate 
had  sealed  with  an  act  of  tragic  horror  that  which  had  been  decreed 
from  the  beginning.  "  Canst  thou  minister  to  a  mind  diseased," 
is  the  question  put  by  the  first  of  poets  and  philosophers  into  the 
mouth  of  one  of  his  greatest  conceptions.  Can  you,  gentlemen  of 
the  jury,  reconcile  the  act  of  this  man's  life,  so  painfully  panoramic 
in  the  shifting  scenes  of  this  trial,  with  any  theory  save  that  of 
positive  madness  ? 

You  must  remember,  also,  gentlemen  of  the  jury,  that  the  legal 
test  is  ability  to  comprehend  the  moral  character  of  the  act  com- 
mitted and  the  power  of  will  to  govern  one's  action  in  obedience 
to  the  judgment.  Dr.  Bell  tells  you  in  startling  and  almost  dra- 
matic tone  that  Buford's  mind  is  rudderless.  You  must  also 
remember  that  it  has  been  declared  as  the  law  of  this  country,  in 
the  case  of  General  Sickles,  who  was  tried  for  the  murder  of 
Philip  Barton  Key,  that  the  legal  rule  does  not  require  that  the 
insanity  which  absolves  from  crime  should  exist  for  any  definite 
period,  but  only  that  it  exist  at  the  moment  when  the  act  occurred 
with  which  the  accused  stands  charged.  You  will  not  fail  to 
remember  that  in  this  case  the  insanity  of  Buford  is  proven  to 
have  been  active  for  the  last  two  years,  and  to  have  been  latent, 
sleeping  like  a  serpent  in  his  blood  ever  since  the  moment  when 
in  infancy  and  innocence  he  opened  his  eyes  in  his  mother's  arms. 
And  I  beg  you  not  to  forget  that  in  the  case  of  Commonwealth  v. 
Rogers,  tried  in  the  commonwealth  of  Massachusetts,  in  1843, 
before  Chief  Justice  Shaw  and  a  jury,  and  which  is,  I  repeat,  a 
pioneer  case  in  this  country,  it  was  declared  as  the  law  of  the  land 


662  MODERN  JURY  TRIALS. 

and  the  settled  rule  of  science  that  a  person  laboring  under  the 
hallucination  of  communicating  with  the  spirits  of  those  who  had 
"gone  to  that  bourne  whence  no  traveler  returns,"  was  not  a 
sane  person,  and  could  not  be  punished  for  acts  stimulated  and 
provoked  by  the  mental  affliction  of  which,  as  in  this  case,  the 
accused  is  the  unhappy  victim.  Much  has  been  said  about  exist- 
ing differences  between  the  law  of  Kentucky  and  the  law  of  the 
rest  of  the  world,  upon  the  subject  of  mental  alienation.  I  am 
not  one  of  those  who  believe  that  any  such  disparity  exists,  for  I 
cannot  but  remember  the  noble  and  exalted  sentiments  expressed 
upon  this  subject  by  the  great  Chief  Justice  Robertson,  who  now 
sleeps  amid  the  "  clods  of  the  valley,"  and  who  has  found  his 
eternal  rest.  But  if  what  has  been  said  on  this  subject  really  be 
true,  let  legislation  and  adjudication  in  the  name  of  humanity  wipe 
out  so  foul  a  blot  upon  the  administration  of  justice  in  Kentucky. 
Hugo  says,  in  that  incomparable  work,  "  Les  Miserables,"  "  our 
joys  are  shaded,  the  perfect  smile  belongs  to  God  alone;"  as  it  is 
with  the  moral  so  it  is  with  the  mental  world.  Lord  Bacon  and 
the  great  Dr.  Haslam  may  have  been  correct  when  they  declared 
that  all  men  were  more  or  less  unbalanced  in  their  minds,  and  per- 
haps the  idea  is  more  felicitously  described  by  Lord  Erskine  in  the 
words,  "  reason  had  not  forsaken  her  throne,  but  unreason  went  up 
and  jostled  her  in  her  seat." 

I  do  not  contend,  gentlemen  of  the  jury,  that  a  slight  depar- 
ture from  the  ordinary  conduct  of  an  individual,  or  an  eccen- 
tricity as  it  may  be  termed,  constitutes  or  typifies  the  condition  of 
mental  unsoundness.  Acts  of  eccentricity  in  themselves  are  but 
rivulets  that  feed  the  mighty  stream  of  madness,  but  in  this  case 
we  have  proven  that  the  great  central  idea  in  the  dominion  of 
Buford's  mind  was  that  he  had  been  wronged,  pillaged  and 
despoiled  ;  and  around  the  central  delusion  of  his  mind,  with  fas- 
cinating, hideous  planetary  regularity,  revolved  all  the  conceptions 
of  his  soul ;  and  when  he  saw  by  the  last  adverse  decision  of  the 
court  of  appeals  his  last  hope  on  earth  disappear,  his  mental  bat- 
tallions  broke  in  panic  and  dissolved.  Then  came  the  cataract  of 
the  frenzy  that  overthrew  the  will  power ;  then  came  with  its 
resistless  rush  that  stream  of  frenzy  that  carried  to  death  and  eter- 
nity the  life  of  Judge  Elliott,  that  startled  all  mankind  with  a 
tragic  horror  unexampled  in  the  history  of  the  jurisprudence  of 
the  world. 

Lest  I  may  forget  it,  gentlemen,  let  me  warn  you  against  any- 
thing that  may  be  said  on  the  other  side,  after  I  shall  have  closed, 
in  relation  to  the  perfect  physical  health  (apparently)  of  the 


BUFORD-ELLIOTT  CASE.  663 

accused.  You  remember  that  Dr.  Chipley  was  forced  to  admit 
that  he  had  never  dissected  a  human  being,  and  if  I  remember 
rightly,  he  could  not  name  a  single  occasion  on  which  he  had  been 
present  when  the  knife  of  the  surgeon  opened  up  to  the  enchanted 
eye  of  the  medical  student  the  wonders  and  secrets  of  the  human 
anatomy.  But  bear  in  mind  that  if  anything  is  sought  to  be  said 
on  that  subject,  to  our  prejudice,  that  post  mortem  examinations 
of  insane  subjects  have  failed  to  reveal,  in  many  instances,  any 
evidence  of  physical  disease  or  organic  disturbance;  furthermore, 
there  is  no  proof  in  this  case  whatever  as  to  the  real  physical 
condition  of  Col.  Buford,  consequently,  the  relation  of  physiology 
to  mental  condition  will  not  enter  into  your  deliberations. 

Gentlemen,  did  you  ever  see  the  phonograph  invented  by  that 
sublime  genius  Edison  ;  by  its  instrumentality  he  causes  a  piece 
of  tin-foil,  wound  round  a  brass  cylinder,  to  speak  the  language  of 
joy,  pathos  and  human  pity;  to  utter  words  of  hope,  despair  and 
human  sorrow.  And  how  does  this  letter,  written  by  Buford  on 
that  day  of  blood,  his  foot  on  the  brink  of  eternity,  speak  to  us 
to-day?  It  tells  us  that  the  o'ermastering  monomania  of  his 
life  had  conquered  the  shattered  remnants  of  his  reason.  It  speaks 
to  us  of  that  undying,  unfaltering,  eternal  love  for  that  wronged 
and  sainted  sister  who  now  sleeps  in  the  Lord.  It  tells  us  that 
his  last  earthly  provision  was  for  one  who  in  the  days  of  anguish 
and  pain,  had  soothed,  caressed  and  cheered  him.  Christianity 
forbids  that  you  immolate  this  man.  Salvation  bursting  from  the 
sepulchre  of  the  Lord  westward  has  belted  the  earth,  and  it  is 
now  returning  to  the  cradle  of  its  birth.  The  principles  taught 
by  the  Redeemer  in  that  sacred  land,  within  whose  limits  are  the 
pool  of  Bethesda,  the  brook  of  Kedron  and  the  cedars  of  Leba- 
non, forbid  the  sacrifice  to  human  vengeance  of  one  afflicted  by 
the  inscrutable  power  and  will  of  the  Deity. 

One  other  topic,  gentlemen,  and  I  will  close  this  discussion,  as 
the  weather  is  most  sultry,  and  I  have  no  doubt  your  patience  is 
well  nigh  exhausted.  All  the  medical  experts  on  both  sides, 
including  Dr.  Chipley,  concur  in  the  opinion  that  sleeplessness, 
chronic  and  long-continued,  is  one  of  the  most  positive  indications 
of  a  diseased  mind. 

And  the  proof  in  this  case  demonstrates  beyond  controversy  or 
contradiction  that  for  a  long  time  anterior  to  this  tragedy,  Col. 
Buford's  nights  were  sleepless,  and  were  passed  in  mental  anguish 
and  disturbance.  He  walked  the  floor,  muttering  to  himself,  curs- 
ing and  denouncing  real  or  imaginary  foes,  and,  in  wierd  commu- 
nication with  the  spirits  of  the  departed  in  the  land  of  shades, 


664  MODERN  JURY  TRIAL. 

listening  to  voices  from  an  unseen  world.  In  the  language  of  some 
of  the  witnesses,  great  scalding  tears  rolled  down  his  cheeks,  and 
the  strong  man  of  dauntless  heart  was  convulsed  in  the  paroxysm 
of  sorrow — and  I  ask  you,  gentlemen,  is  not  the  story  of  his  life 
one  that  justly  causes  the  tear  of  human  sympathy  to  flow  down 
the  marble  cheek  of  justice.  Behold  him  upon  the  highway,  astride 
his  horse,  talking  loudly  to  himself  and  gesticulating  to  the  air. 

It  was  not  in  this  mood  that  Daniel  Webster  composed  those 
prophetic  and  sublime  sentences  that  saved  the  American  Union 
and  destroyed  Governor  Hayne.  It  was  not  in  this  mood  that 
Henry  Clay,  the  Great  Pacificator,  the  Great  Commoner,  composed 
those  magnificent  sentiments  that  enthralled  the  American  senate 
and  fascinated  the  world.  So  you  see  that  Col.  Breckenridge  in 
this  illustration  and  comparison  was  not  in  his  usual  happy  vein. 

I  think  I  have  'now  said  all  that  need  be  said  on  our  side  of  this 
case.  It  is  in  your  hands.  I  thank  you  for  the  kind  consideration 
and  attention  with  which  you  have  deigned  to  honor  me.  I  am 
speaking  here  as  it  were  for  the  dead  friend  of  my  youth,  and  if 
it  is  possible  that  he  be  conscious  of  what  I  have  done  it  is  a  con- 
solation to  me  to  know  that  he  at  least  understands  that  I  have 
never  forgotten  the  ancient  friendship  that  existed  between  us.  I 
have  demonstrated  in  this  proof  that  this  man's  life  cannot  be 
taken  without  a  judicial  murder.  I  have  shown  you  the  acts  and 
influences  that  operated  upon  his  mind  and  the  reason  why,  in  the 
view  of  the  law,  in  the  view  of  medical  science,  in  the  view  of 
Christianity,  in  the  view  of  humanity,  you  should  not  lay  your 
hands  on  that  life. 

In  the  name  of  our  Heavenly  Father,  whose  service  is  perfect 
justice,  in  the  names  of  your  wives  and  children,  to  whose  embrace 
you  will  soon  return,  in  the  name  of  Christianity,  humanity, 
science,  progress  and  the  law,  lay  not  audacious  and  sacrilegious 
hands  upon  this  mentally-benighted  man,  from  his  very  infirmity 
under  the  protection  of  heaven.  In  the  progress  of  the  ages  this 
country  may  become  only  the  subject  of  the  antiquary,  but  let  not 
the  historian  of  that  distant  day  have  it  to  record  that  a  lunatic, 
overmastered  by  his  fate,  afflicted  with  the  direst  infirmity  with 
which  God  has  ever  chastised  any  of  his  children,  was,  in  obedi- 
ence to  the  bestial  voice  of  popular  ignorance,  clamor,  prejudice, 
and  revenge,  in  the  gaze  of  the  civilized  universe,  strangled  to 
death  on  the  scaffold  and  inhumanly  rushed,  soul  unprepared,  into 
the  presence  of  his  Maker. 

Col.  Breckenridge,  in  his  beautiful  and  eloquent  peroration, 
brought  before  you  the  state  of  Kentucky  holding  in  her  hand  the 


BUFORD-ELLIOTT  CASE.  665 

record  of  her  list  of  crimes,  and  with  her  he  brought  the  body  of 
the  dead  judge.  And  upon  this  spectacle  he  demanded  judgment 
for  the  people.  I  bring  you,  the  dead  judge,  the  mad  assassin,  and 
arraign  all  before  Kentucky,  and  demand,  in  her  sacred  name,  her 
traditions  and  her  laws,  that  you  be  true  to  the  solemn  oath  you 
have  taken  to  true  deliverance  make  between  the  people  and  the 
prisoner. 

I  stand  in  the  land  of  Boyle,  Crittenden,  Clay  and  Robertson, 
and  in  their  name,  in  the  name  of  that  law  which  they  so  nobly 
vindicated  while  upon  the  earth,  I  demand  that  this  mad  captive 
go  free  and  unscathed  from  this  temple  of  justice;  and,  in  the  sen- 
timent of  the  sublime  prayer  of  the  common  law,  "  May  God  grant 
him  quick  deliverance." 

The  prisoner  was  found  guilty,  and  sentenced  to  a  life  imprison- 
ment— the  jury  fearing  to  acquit  and  subject  the  prisoner  to  the 
risk  of  lynching,  and  themselves  likewise.  By  the  adroitness  of 
counsel  a  new  trial  was  secured,  through  a  bill  of  exceptions  on 
excluded  evidence.  The  court  of  appeals  judges,  being  witnesses 
to  the  shooting  referred  to,  could  not  hear  the  appeal,  and  a  new 
court  was  appointed  by  the  govern  or,  from  lawyers  who  had  never 
been  judges,  which  granted  the  new  trial.  Some  one  hundred  wit- 
nesses were  sworn  on  the  last  trial,  in  which  Phil.  B.  Thompson 
appeared  as  senior  counsel  for  the  prisoner,  and  displayed  great 
skill  in  the  management  of  the  defense,  which  was  practically  made 
by  the  rules  laid  down  by  the  court  of  appeals.  The  main  work  was 
done  on  the  first  trial,  and  had  a  fair  trial  then  been  had,  it  would 
have  doubtless  resulted  as  the  last  one  did.  The  court  of  appeals 
held  with  the  prisoner's  counsel  on  a  majority  of  all  the  proposi- 
tions and  exceptions. 

The  second  trial  resulted  in  a  verdict  of  not  guilty  by  reason  of 
insanity  ;  and  the  prisoner  was,  and  is  still,  confined  in  an  asylum 
near  Louisville. 

The  closing  words  of  Gen.  Rodman  and  Col.  Breckenridge  are 
given  under  the  general  head  of  "  Closing  Periods,"  where  short 
extracts  are  given  of  many  cases  and  speeches,  reduced  to  the 
•mallest  possible  limit. 


666  MODERN  JURY  TRIALS. 

CLOSING    PEKIODS, 

And  Extract*  of  Speeehet, 

While  counsel  seldom  commit  closing  periods  of  an  argument, 
they  may  often  refresh  their  memory  and  inspire  their  thoughts  by 
a  review  of  the  words  that  other  advocates  have  used  in  closing  their 
addresses.  This  will  be  clearly  illustrated  in  the  case  of  Governor 
Crittenden  in  his  famous  allegory  on  the  creation  of  man,  which, 
though  borrowed  from  the  German,  and  read  to  the  jury,  did  much 
to  immortalize  the  orator  as  an  orator.  Webster  frequently  bor- 
rowed. Carpenter  formed  all  his  speeches  like  a  bouquet,  with 
one  central  figure,  the  rest  grouped  around  it.  Beach  closed  the 
Beecher  case  with  a  quoted  passage.  Many  apt  sayings  and  forcible 
figures  may  be  found  in  these  periods,  with  some  in  the  cases,  and 
others  reported  throughout  the  volume.  A  brief  study  of  the 
effect  of  oratory  will  readily  convince  one  of  the  fact,  that  short 
sentences,  clear  illustrations,  strong  comparisons  and  a  variety  of 
expressions  in  argument,  will  please  and  persuade  men  ;  for  each 
has  a  fancy  peculiar  to  himself. 

G.  V.  N.  LOTHEOP'S  CLOSING  TS  VANDERPOOL  CASH. 

al  repeat,  that  these  facts  speak  in  unmistakable  language  of  his 
guilt;  they  tell  a  story  that  cannot  be  disputed,  even  though  one 
rose  from  the  dead.  Murder,  though  it  hath  no  tongue,  yet  shall 
it  speak  a  wondrous  language;  all  the  mists  are  cleared  away,  the 
obscurity  that  surrounded  this  case  has  disappeared;  it  is  as  though 
the  walls  of  that  bank  were  lifted  up,  and  the  bright  September 
sun  should  stream  in  and  show  the  dreadful  deed;  in  the  light  of 
all  this  evidence  you  see  standing  over  the  body  of  his  prostrate 
victim,  his  hands  dripping  with  his  blood,  the  murderer  of  Herbert 
Field  1" 

GENERAL  BEOWN'g  CLOSING   IN   FOSTER  CASK 

"Counsel  would  excite  your  sympathy  for  this  unfortunate  pris- 
oner. I  do  not  complain  of  this.  Think  as  kindly  as  you  may  of 
the  erring;  it  is  natural,  it  is  right.  But,  gentlemen,  even  in  the 
matter  of  sympathy,  there  is  another  side  to  this  case.  Take  this 
widow  and  her  orphan  children,  and  go  to  that  lone  and  lonely  kirk- 
yard,  and  standing  by  the  grave  of  Calvin  Hatfield — unmarked  by 


CLOSING  PERIODS.  667 

stone  or  monument — in  view  of  the  great  sorrow  that  this  defendant 
has  brought  into  the  world,  there  write  your  verdict;  when  you 
have  done  this,  the  demands  of  publio  justice  will  be  satisfied,  and 
a  broken  law  fully  vindicated.** 

EMERY  A.  STORE'S  CLOSING  WORDS  nr  BABCOCK  CASH. 

[In  low,  husky  tones,  but  eloquent  manner;  his  eyes  beaming 
with  the  fire  of  deep  earnestness,  his  frail  form  trembling  with 
suppressed  emotion]: 

"He  is  not  guilty,  gentlemen;  he  is  not  guilty  !  I  feel  an  inspir- 
ation settling  in  this  court-room,  stretching  away  to  Washington, 
as  if  to  bear  the  glad  news  to  his  devoted  family,  who,  in  his 
humble  home,  where  an  anxious  wife,  now  surrounded  by  her  little 
children,  are  kneeling,  watching,  praying  and  looking  to  God  for 
his  deliverance  and  joyous  return  to  the  capital  of  his  country, 
that  he  has  served  so  long,  so  faithfully  and  so  well.** 

A.  M'REYNOLDS  IN  STEPHENS'  CASE. 

"  Gentlemen,  my  work  is  almost  done,  poorly  as  it  is,  I  must  trust 
to  you  to  do  a  better  work.  And  my  little  clients  (here  the 
speaker  laid  one  hand  on  each  of  the  client's  shoulders,  and  amid 
the  hushed  silence  of  rapt  attention,  said:)  my  little  clients,  may 
God  bless  you !  I  have  done  my  best  to  make  your  names  an 
honor  to  our  state.  But  oh  !  how  poor  and  weak  my  words  have 
been.  And  you,  gentlemen,  even  now,  by  your  silence  and  your 
interest  in  this  case,  methinks  I  hear  you  say,  stop !  delay  not 
longer;  let  us  begin  this  work  of  justice;  stop!  that  we  may 
rebuke  this  cruel  company;  stop  !  that  we  may  restore  these  orph- 
ans to  their  own;  to  that  pure  character  that  they  will  love  to 
honor,  a  character  as  pure  as  they  knew  her  on  that  last  and  long 
good-night,  the  night  before  the  night  of  death;  stop  1  that  you 
may  wipe  away  all  tears  from  these  orphans'  eyes,  and  plant  the 
aweet  rose  of  a  mother's  love  in  their  bright  young  lives  to  grow 
bloom  and  bless  the  world  for  their  living  in  it;  stop,  that  we 
may  right  this  wrong  at  once.  O  God  !  put  it  into  the  hearts  of 
this  jury  to  see  the  truth;  to  vindicate  a  mother's  name  and  a 
mother's  love  to  her  helpless  children;  to  hasten  with  their  verdict 
and  their  vindication  !  " 

CLOSING   A   ROBBERY    CASE. 

"There  is  an  old,  old  maxim  of  the  law,  believed  in  by  the  Greeks, 
and  taught  by  the  Romans,  that  has  crystalized  by  the  use  of  cen- 
turies, and  will  live  as  long  as  law  shall  govern  man;  for  it  speaks 


668  MODERN  JURY  TRIALS. 

in  the  language  of  reason  and  nature  when  it  Bays:  JVb  man 
becomes  suddenly  vile.     No  man  becomes  suddenly  evil." 

"  Crime,  like  character,  grows  by  degrees.  If  this  is  reason,  if 
good  men  on  oath  may  be  trusted,  and  bad  men  should  "be  dis- 
credited, if  the  nearest  neighbors,  who  have  known  a  boy  for  years, 
swear  he  is  honest,  and  the  law  believes  him  honest,  how  in  the 
name  of  justice  can  a  jury  on  their  oaths,  convict  one  of  robbery  by 
the  story  of  a  maudlin  drunkard  and  rob  a  boy  of  his  liberty,  and 
a  widow  of  her  son,  and  find  that  he  has  grown  suddenly  vile,  after 
a  life  of  rectitude.  *  *  Sooner  or  later  homes  are  broken  up, 
death  steals  in  and  takes  one  after  another  away,  seals  up  the  doors 
of  breath;  puts  out  the  light  of  life  from  the  eyes,  freezes  the 
purple  current  of  the  veins;  but  death  is  not  dishonor;  it  is  a  thou- 
sand times  better  to  die  thus  than  to  be  buried  alive  in  prison  ! 
To  walk  up  and  down  the  little  cell,  beating  his  head  against  the 
bars  like  a  caged  bird,  looking  out  into  the  darkness  and  praying 
for  release.  To  you  he  looks  for  his  deliverance." 

ELOQUENT  WORDS  OP  GRAHAM. 

"  How  consoling  it  must  be  to  this  poor,  afflicted  man,  that  he  is 
at  last  where  he  has  no  fear  or  dread  to  be;  before  a  jury  of  his 
peers,  the  highest  privilege  given  him  by  the  laws  of  his  country. 

"Long  enough  as  he  endured  the  pelting  of  this  pitiless  storm. 
Who  does  not  trust  that  he  will  find  an  asylum  in  your  justice  and 
that  justice  will  be  seasoned  with  mercy,  as  you  yourselves  expect 
to  be  forgiven  ?  The  story  of  his  life  is  briefly  told.  He  loved 
not  wisely,  but  too  well.  Have  you  not,  during  the  development 
of  this  case,  often  asked  yourselves,  over  and  over  again,  '  Should 
I  have  done  less  than  he  did,  or  might  I  not  have  done  more?' 

"  Who  can  tell  the  capacity  of  the  human  mind  ?  Who  can  over- 
turn the  work  of  Omnipotence  ?  Who  can  alter  or  reverse  its  fiat  ? 
If  we  turn  our  eyes  to  the  trackless  realms  of  space,  which  abound 
with  evidence  of  the  vastness,  power  and  wisdom  of  the  Author  of 
all,  how  are  we  overwhelmed  by  the  grandeur  of  the  contempla- 
tion and  shrivelled  by  the  sense  of  our  own  meanness  ? 

"  Who  can  return  to  the  Queen  of  Night  her  silvery  whiteness,  or 
despoil  her  of  her  procreant  fullness  ?  Who  could  question  the 
laws  which  control  the  movements  of  the  heavenly  spheres — com- 
pared with  which  our  own  is  but  a  speck,  scarcely  an  ascertainable 
connection?  Who  can  check  the  light  that  issues  from  the  sun? 
Who  can  control  the  blowing  of  the  wind? 

"  These  are  not  within  the  scope  of  human  power.  It  is  to  thia 
category  we  assign  the  human  mind.  It  is  the  breath  of  Deity;  it 


CLOSING  PERIODS,  669 

is  a  fire  of  his  kindling.  It  is  the  immortal  soul,  bound  on  its  way  to 
an  endless  eternity !  It  contains  the  elements  communicated  from 
its  divine  source.  There  is  a  point  to  which  its  operations  may  be 
vicious  and  criminal,  but  beyond  its  action  is  suspended,  leaving 
its  possessor  to  an  involuntary  execution  of  Divine  vengeance  !  n 

MB.    VOOBHEES  IN  COOK   CASE,    OP   HABPEfi's  FEBBT  INSUBRECTION. 

"  I  am  not  here,  gentlemen,  in  behalf  of  this  pale-faced,  fair- 
haired  wanderer  from  his  home  and  the  paths  of  duty,  to  talk  to 
you  about  technicalities  of  law,  born  of  laborious  analysis,  by  the 
light  of  midnight  lamps.  I  place  him  before  you  on  no  such  nar- 
row grounds.  He  is  in  the  hands  of  friends,  who  deplore  as  much 
as  I  deplore,  the  conduct  of  which  he  has  been  charged.  But  does 
that  fact  debar  him  of  human  sympathy?  Does  the  sinful  act 
smite  the  erring  brother  with  the  leprosy  which  forbids  the  touch 
of  the  hand  of  affection?  Is  his  voice  of  repentance,  an  appeal  for 
forgiveness,  stifled  in  the  mouth  ?  If  so,  the  meek,  forgiving 
Saviour  of  the  world  would  have  recoiled  with  horror  from  Mary 
Magdalene,  and  spurned  the  repentant  sorrow  of  Peter,  who 
deceived  him?  If  He  who  made  the  earth  and  sun,  and  hung 
the  moon  and  stars  on  high  to  give  it  light,  and  created  man 
a  joint  heir  of  eternal  wealth,  and  put  within  him  an  immortal 
spark  of  that  celestial  flame  which  surrounds  His  throne,  could 
remember  mercy  in  executing  justice,  when  His  whole  plan  of 
divine  government  was  assailed  and  deranged;  when  His  law  was 
set  at  defiance  and  violated;  when  the  purity  of  Eden  had  been 
defiled  by  the  presence  and  counsels  of  the  Serpent;  why  so  can 
you  and  so  can  I,  when  the  wrong  and  crime  stand  confessed,  and 
every  atonement  is  made  to  the  majesty  of  the  law  which  the  pris- 
oner has  in  his  power  to  make." 

SAN  FRANCISCO  SARCASM WESTERN  WIT  OP  HALL  M*ALLISTEE. 

"  He  is  in  the  front  rank  of  our  profession  !  A  great  and  noble 
profession  would  be  defiled  and  disgraced  by  the  presence  of  such  a 
man  !  I  admit  his  ability;  I  admit  his  ingenuity;  I  admit  his  tact. 
But  the  first  requisite  of  a  member  of  a  learned  profession  is  to  be 
a  gentleman!  It  is  well  in  all  cases  that  there  should  be  between 
the  angry  passions  of  litigants,  in  their  contention,  a  body  of  pro« 
fessional  men,  bred  and  learned  in  the  law,  to  represent,  fairly  and 
justly,  the  interest  of  their  clients.  This  case  illustrates  what  a 
bear  garden  a  court  would  be,  if  men  of  the  malignant  disposition 
of  this  defendant  were  continually  pleading  their  own  cases  in  a 
tribunal  of  justice  where  they  vent  their  passions  and  violent 


670  MODERN  JURY  TRIALS. 

abuse  in  the  coarsest  language  and  the  most  infamous  vilification! 
Hence,  I  say,  it  is  a  practice  certainly  honored  in  the  observance* 
to  have  between  those  angry  disputants  (who  may  be  men  with 
neither  respect  for  their  fellow  men  nor  self-respect),  to  prevent 
the  angry  litigants  from  tirades  of  foul  declamation.  I  never  in  all 
my  life  have  seen  such  an  exhibition  !  Why,  one  of  those  barbar- 
ous Bashi-Bazouks  would  have  conducted  himself  with  more 
decency  !  He  has  spared  no  one,  no  character,  no  reputation;  epi- 
thets of  vileness,  selected,  culled  out,  carved — a  kind  of  Corinthian 
column  made  up  of  filth!  I  don't  think  a  man  of  that  cunning, 
leering,  malignant,  hang-dog  expression,  can  stand  up  here  and  call 
himself  a  beauty!  The  charge  on  my  clients  he  lays  without  a 
particle  of  proof.  But  there  are  some  matters  that  he  can  not  lay 
to  their  charge.  He  can  not  say  that  they  have  been  indicted  by  a 
grand  jury  for  the  theft  and  embezzlement  of  $400,000.  He  can 
not  say  they  have  occupied  a  felon's  cell.  They  have  never  been 
charged  with  crime,  neither  have  they  been  taken  from  the  coal 
hole  of  a  steamer,  covered  with  suit  and  dirt,  and  made  a  spec- 
tacle of,  as  an  absconder;  not  only  their  person  defiled  and  dis- 
graced, but  more  defiled  and  dishonored  by  a  broken  promise  and 
violated  honor.  None  of  these  things  have  been  laid  to  their  charge. 
There  is  no  language  too  violent  for  this  man  in  denouncing  the 
Stanford  party  and  the  Finance  Company.  They  are  conspirators. 
They  are  devil-fish;  their  presence  is  mildew  and  their  touch  is  con- 
tamination, according  to  his  statement.  And  he  is  pursued  by 
them  because  he  sought  to  protect  the  people  of  California  from 
their  exactions.  Is  not  this  rather  a  late  discovery  ?  Has  he  not 
been  one  of  them  seven  long  years,  forwarding  their  plans,  favor- 
ing their  views,  fawning  upon  their  persons  as  a  dog  to  its  master? 
He  was  their  adherent,  their  man  Friday.  Their  presence  was  not 
then  mildew,  but  a  pleasure  and  a  charm.  If  he  could  travel  in 
their  private  car,  it  was  an  extreme  gratification.  When  they 
turned  him  away,  the  discarded  agent  became  their  inveterate 
enemy,  and  the  champion  of  the  people.  He  the  champion  of  the 
people  !  He  a  tribune  of  the  people  !  Defending  the  Plebeians 
from  the  encroachments  of  Patricians;  standing  in  the  breach,  the 
advocate  of  the  Archer  bill !  With  what  arrogance  and  assumption 
he  would  wipe  out  the  evidence  of  our  witness  as  with  a  sponge, 
and  make  new  rules  of  evidence,  while  one  of  the  most  disgraceful 
incidents  of  this  case  is  the  flippant  conduct  and  impertinent  and 
coarse  replies,  of  which  we  can  call  by  high  authority,  as  Lord 
Brougham,  who  says:  'Nothing  more  surely  discloses  the  testi- 
mony of  a  false  witness  than  a  flippant  and  impertinent  manner  of 


CLOSING  PERIODS.  671 

telling  his  story.'  It  is  an  accepted  axiom  that  only  persons, 
either  male  or  female,  whose  characters  are  somewhat  dubious,  are 
ever  improperly  approached.  No  man  who  is  thoroughly  honest, 
and  no  woman  who  is  perfectly  chaste,  ever  receives  improper 
solicitations.  When  such  are  made,  there  is  always  a  cause,  how- 
ever slight,  as  was  written  by  a  very  eminent  lady: 

' "  In  part  is  she  to  blame,  who  comes  to  be  tried; 
He  comes  too  close,  who  comes  to  be  denied.' " 

*      *      *      CLOSING   A   FRAUD    CASH    (FROM  MEMORY). 

"The  whole  story  is  romantic.  The  plaintiif,  as  you  have  seen,  is 
growing  old,  a  farmer,  honest,  industrious  and  ingenious ;  he  has 
peddled  some,  and  once  been  a  livery  man,  later  became  a  mer- 
chant. In  1877  he  started  a  hardware,  tinware  and  peddlers'  sup- 
plies store,  and  later  had  a  branch  house.  He  had  little  or  no  edu- 
cation, not  even  able  to  read  or  write,  save  his  own  name,  and  that 
little  learning  was  a  damage  to  him,  for  he  signed  checks  in  blank, 
and  trusted  them  to  boys  to  be  filled  out  to  his  prejudice,  and 
finally  to  his  financial  ruin. 

"  His  business  career  is  the  very  one  likely  to  follow  men  of  his 
lack  of  fitness  to  battle  with  the  storms  and  financial  disaster  that 
came  in  1878 — that  whirlwind  of  bankruptcy  and  failure  that  swept 
the  country  like  a  tornado,  breaking  down  strong  houses  and  car- 
rying away  men  that  had  before  known  only  success  and  pros- 
perity; that  time  when  the  whole  nation  was  rocked  by  the  strong 
storm  of  financial  upheaving;  when  the  broken  stocks  were  thrown 
on  the  market,  when  tramps  paraded  the  country,  when  men  cried 
for  greenbacks  and  a  change — any  change — in  money  matters,  till 
the  whole  bottom  of  our  financial  creation  seemed  falling  out,  and 
the  buildings  were  rolling  together  in  the  ruins,  then  was  the  fail- 
ure of  this  farmer  merchant.  *  *  *  * 

"  But  of  all  these  mighty  firms  that  went  under,  and  paid  ten 
cents  to  thirty  cents  on  the  dollar,  none  were  arrested  for  fraud, 
none  arrested  for  false  pretenses;  some  failed  and  grew  rich;  many 
of  them  prospered  since,  and  seemed  honest.  And  when  this  poor 
farmer  failed — a  natural  failure — what  do  we  find  ?  This  we  find ! 
They  hunt  him  from  his  store,  arrest  him  for  debt !  false  pretenses  ! 
drive  him  to  Canada  !  in  exile  from  his  family,  and  there  keep 
him  seven  months,  in  poverty  and  rags,  till  he  almost  starved  to 
death,  living  on  seven  cents  a  day,  then  they  send  lawyers,  and  try 
to  force  him  to  tell  lies,  then  sign  written  statements  of  lies,  then 
swear  to  lies,  and  he  refuses  till  counsel  is  sent  for,  and  advise  him 
to  go  home  !  And  he  goes  home  ;  and  lo  !  all  he  had  is  swept 


672  MODERN  JURY  TRIALS. 

away  !     He  had  secured  his  boy,  Clarence,  for  money  borrowed, 
and  his  friend  for  more;  but  all  is  gone,  and  he  is  poor  J 

******** 

"  It  was  an  old  Roman  Commoner,  with  shaggy  hair  and  grizzly 
beard,  and  bent  form  and  ragged  clothes,  who,  nearly  three 
thousand  years  ago,  said  :  "  Romans,  I  am  from  your  debtor's 
prison.  Once  I  traded  on  your  streets,  and  borrowed  and  paid 
again.  One  day  I  was  surety  for  a  friend,  who  failed,  and  I,  too. 
failing  to  make  good  the  debt,  was  hurried  to  the  prison  cell. 
Romans,  I  am  free  now.  It  is  not  for  myself  I  speak  thus,  but 
lest  others  go  where  I  have  been,  I  would  abolish  such  a  human 
curse  ! "  His  story  moved  all  Rome  !  That  prison  was  abolished, 
and  more  than  thirty  years  ago,  in  Pennsylvania,  James  Buchanan 
abolished  imprisonment  for  debt,  by  a  powerful  appeal  in  his  state, 
and  here  in  our  state  the  intelligence  of  the  people  wiped  it  from 
our  statute  books,  and  still  a  barbarous  relic  of  false  pretenses 
remains ! 

"  And  here  is  the  Roman  Commoner  who  pleads  by  his  looks  and 
acts,  'I  would  abolish  such  a  curse.'  What  has  he  done?  Deep 
in  trade,  met  every  dollar  ever  due,  even  to  the  day  of  his  leav- 
ing for  Canada,  and  still  the  great  big  greedy  firms  bear  down 
on  him  with  iron  hands,  to  crush  him,  and  not  only  hold  all  he 
has,  but  would  have  you  rob  him  of  the  last  bright  jewel  of  his 
life — his  good  name,  his  honor — and  brand  him  as  a  fraud  and  bring 
him  on  to  prove  he  is  a  fraud  !  This  is  the  grandest  audacity  I 
ever  saw.  It  is  not  enough  to  take  his  goods  and  break  him  up, 
but  they  take  his  boy's  mortgage,  his  exemption  that  the  state 
allots,  and  all  he  had,  and  cry  for  more  !  This  is  not  fair.  It  i» 
cruel.  It  is  barbarous.  It  is  inhuman.  It  is  wrong.  It  is  abso- 
lutely cruel.  It  is  mean,  gentlemen  ! 

"  They  claim  he  secured  us  on  all  he  had,  while  they  are  his 
friends.  They  his  friends!  Well,  gentlemen  when  I  am  fifty- 
five,  and  want  a  friend,  and  have  had  one  who  trusted  me  to  goods 
and  money,  one  I  confided  in,  and  I  secure  him,  and  others  get 
jealous  and  arrest  me,  try  to  put  me  in  the  debtor's  prison,  drive 
me  from  home,  seven  long  months  in  poverty  and  rags,  try  to  buy 
me  to  lie  and  swear  to  lying  statements,  and  at  last  promise  to  pay 
my  friend,  save  some  for  my  boy,  and  I  come  home,  and  find  their 
attachments  have  taken  all,  and  all  is  gone  !  which  shall  I  choose 
for  a  friend  ?  This  is  worse  than  border  ruffians  do  I  Let  me 
illustrate  by  a  story  : 

"It  was  a  hot  evening  in  July,  1860,  a  herdsman  was  moving  his 
cattle  to  a  new  ranch  further  north,  near  Helena,  Texas,  and  pasa- 


CLOSING  PERIODS.  678 

ing  down  the  banks  of  a  stream  his  herd  became  mixed  with 
other  cattle  that  were  grazing  in  the  valley,  and  some  of  them 
failed  to  be  separated.  The  next  day  about  noon  a  band  of  a 
dozen  mounted  Texas  Rangers  overtook  the  herdsman  and 
demanded  their  cattle,  which  they  said  were  stolen. 

"  It  was  before  the  days  of  law  and  court-houses  in  Texas,  and  one 
had  better  kill  five  men  than  to  steal  a  mule  worth  five  dollars, 
and  the  herdsman  knew  it.  He  tried  to  explain,  but  they  told 
him  to  cut  his  story  short.  He  offered  to  turn  over  all  the  cattle 
not  his  own,  but  they  laughed  at  this  proposition,  and  hinted  that 
they  usually  confiscated  the  whole  herd  and  left  the  thief  hanging 
on  a  tree  as  a  warning  to  others  in  like  cases. 

"  The  poor  fellow  was  completely  overcome.  They  consulted 
apart  a  few  moments,  and  then  told  him  if  he  had  any  explanations 
to  make  or  business  to  do  they  would  allow  him  ten  minutes  to  do 
so,  and  defend  himself.  He  turned  to  the  rough  faces,  and  com- 
menced :  'How  many  of  you  men  have  wives?'  Two  or  three 
nodded.  *  How  many  of  you  men  have  children  ? '  They  nodded 
again. 

"'Then  I  know  who  I  am  talking  to,  and  you'll  hear  me,'  and  he 
continued  :  '  I  never  stole  any  cattle  ;  I  have  lived  in  these  parts 
over  three  years.  I  came  from  New  Hampshire  ;  I  failed  there  in 
the  fall  of  '57,  during  the  panic.  I  have  been  saving;  I  lived  on 
hard  fare;  I  have  slept  out  on  the  ground  ;  I  have  no  home  here. 
My  family  remain  east,  for  I  go  from  place  to  place.  These 
clothes  I  wear  are  rough,  and  I  am  a  hard-looking  customer ;  but 
this  is  a  hard  country.  Days  seem  like  months  to  me,  and  months 
like  years;  married  men,  you  know  that  but  for  the  letters  from 
home — (here  he  pulled  out  a  handful  of  well-worn  envelopes  and 
letters  from  his  wife) — I  should  get  discouraged.  I  have  paid 
part  of  my  debts.  Here  are  the  receipts — (and  he  unfolded  the 
letters  of  acknowledgment).  I  expected  to  sell  and  go  home  in 
November.  Here  is  the  testament  my  good  mother  gave  me;  here 
is  my  little  girl's  picture,  God  bless  her ! '  and  he  kissed  it  ten- 
derly, and  continued  :  '  Now,  men,  if  you  have  decided  to  kill  me 
for  doing  what  I  am  innocent  of,  send  these  home,  and  send  as 
much  as  you  can  from  the  cattle,  when  I  am  dead.  Can't  you  send 
half  their  value? — my  family  will  need  it.' 

* '  Hold  on,  now,  stop  right  thar  ! '  said  a  rough  ranger.  'Now, 
I  say,  boys,'  he  continued  :  '  I  say,  let  him  go.  Give  us  youi 
hand,  old  boy  ;  that  picture  and  them  letters  did  the  business. 
You  can  go  free;  but  you're  lucky,  mind  ye.' 

" '  "Well  do  more'n  that,'  said  a  man  with  a  big  heart,  in  Texan 
48 


574  MODERN  JURY  TRIAL& 

garb,  and  carrying  the  customary  brace  of  pistols  in  his  belt,  '  let's 
buy  his  herd  and  let  him  go  home  now.' 

"  They  did,  and  when  the  money  was  paid  over,  and  the  man 
about  to  start,  he  was  too  weak  to  stand.  The  long  strain  of 
hopes  and  fears,  being  away  from  home  under  such  trying  cir- 
cumstances, the  sudden  deliverance  from  death,  had  combined  to 
render  him  helpless  as  a  child.  He  sank  to  the  ground,  completely 
evercome.  An  hour  later,  however,  he  left  on  horseback  for  the 
nearest  stage  route,  and,  as  they  shook  hands  and  bade  him  good* 
bye,  they  looked  the  happiest  band  of  men  ever  seen. 

"  So  deal  with  this  farmer. 

"  Such  men  do  not  steal.     Such  men  are  not  frauds. 

"  They  claim  to  be  his  friends.  So  do  we.  We  met  him  in  his 
dire  distress.  We  saw  him  poor.  Talk  of  jails,  talk  of  prisons, 
talk  of  poverty  and  hunger  !  It  was  more. 

"  Poverty,  rags  and  starvation  !  Not  even  the  cattle  that  the 
exiled  herdsman  had.  Banished  from  home.  Unable  to  write. 
Deprived  of  the  letters  that  the  herdsman  had.  The  prisoner  for 
debt  was  no  more  wronged  than  this  farmer  who  has  failed. 

"  Restore  him  his  character,  gentlemen ;  and  think,  in  after 
years,  how  you  hardened  not  your  hearts  I " 

O.  V.  K.  LOTHEOP  IN  THB  BEILLY-8CBIPP8  LIBEL  CASK. 

"  The  individual,  however  influential  he  may  be,  speaks  neces- 
sarily to  a  limited  audience.  The  press  speaks  to  a  community 
infinitely  larger  and  wider  ;  it  brings  to  itself  a  wonderful  power 
of  diffusion,  and  there  is  no  limit,  save  the  limits  of  human  civili- 
zation, to  which  the  utterances  of  the  press  may  not  go.  I 
sometimes  think  of  the  striking  figure  of  the  evangelist  in  the 
apocalypse,  when  he  saw  a  mighty  angel  come  down  from  heaven. 
His  clothing  was  a  cloud;  there  was  a  rainbow  about  his  head, 
his  face  was  as  the  sun,  and  his  legs  were  as  pillars  of  fire ;  he  set 
his  right  foot  on  the  land  and  his  left  foot  on  the  sea,  and  he  cried 
and  his  voice  was  as  of  a  lion  when  he  roareth;  and  when  he  cried 
seven  thunders  answered  with  their  voice.  That  great-read) ing 
vision  saw  no  utterance  wider  than  that  of  the  thunders  as  they 
rolled  round  the  firmament.  And  so  is  the  utterance  of  the  press. 
It  brings  to  itself  the  forked  lightnings  of  heaven,  and  borrowing 
the  swift  wings  of  steam,  there  is  no  limit  in  human  space  that 
bounds  it,  but  everywhere  its  voice  speaks  as  the  voice  of  seven 
thunders,  rolling  round  the  neaveus." 


CLOSING  PERIODS.  675 

HOK.    ALFRED   BfSSELL,  OF  DETROIT,  CLOSING  IW  A    SLANDBB   CASB. 

[This  closing  of  the  McBain  case  is  hardly  a  true  type  of  Mr. 
Russell's  usually  classical  language.  He  is  a  polished  speaker,  a 
man  of  tine  presence,  tall,  commanding,  and  very  young  looking. 
He  is  of  New  England  birth  and  education.  He  has  practiced 
largely  in  higher  courts — often  in  United  States  Supreme  Court — 
and  competed  successfully  with  men  like  Matt.  Carpenter,  in  a 
three-million  ship-canal  case.  As  an  advocate  he  is  adroit  in  the 
management  of  facts,  and  fluent  and  convincing  in  speech.] 

"  Why  this  eager  expectancy  ?  Why  this  unusual  attendance  at 
this  hour  of  the  day  ?  Why  these  anxious  upturned  faces,  waiting 
for  your  verdict  ?  You  know,  and  I  know.  It  is  because  you 
have  seen,  and  still  see  before  you,  a  fair  young  school-girl,  just 
entering  into  womanhood,  a  child  in  appearance  as  yet,  and  she 
craves  from  you,  through  her  injured  father,  protection  from  a 
cruel  wrong  ?  What  is  that  wrong  ?  Defaming  her  character  as 
a  virtuous  girl  by  the  utterance  of  a  vile  slander — a  slander,  I  blush 
to  say,  which  implies  a  want  of  chastity.  Who  has  inflicted  this 
wrong?  Who  is  the  defendant  ?  A  married  woman!  A  resident 
of  East  Saginaw — that  prosperous  and  flourishing  community, 
where  wealth  is  so  rapidly  accumulated.  A  neighbor  of  this  fair 
young  girl;  a  member  of  that  church  of  which  the  mother  of  this 
injured  girl  is  also  a  member;  a  member  of  that  church  in  whose 
Sunday-school  this  young  girl  is  a  pupil.  I  say,  gentlemen,  by 
every  consideration  which  can  move  the  human  heart;  not  only  by 
her  youth  and  tender  years,  but  by  her  attendance  in  that  Sunday- 
school,  she  was  entitled  to  kind,  and  tender,  and  considerate  treat- 
ment at  the  hands  of  this  woman. 

"  You  know  what  a  man's  reputation  is.  You  know  that  as  law- 
yers, ais  fathers,  as  merchants,  we  must  have  a  reputation  which  is 
good — we  must  have  a  good  name  or  else  we  do  not  get  business. 
No  man  will  deal  with  a  dishonest  merchant;  no  man  will  entrust 
his  case  to  a  dishonest  lawyer — even  Congressmen  must  be  honest, 
if  they  expect  re-election.  I  happened  to  spend  a  month  in  the 
national  capital  not  long  ago,  and  I  saw  a  most  impressive  instance 
of  an  illustration  of  this  matter.  I  saw  sitting  in  the  House  of 
Representatives  a  man  of  stalwart  frame;  a  man  of  age;  a  man  of 
riches;  a  man  who  had  achieved  great  works  ;  a  man  who  had 
built  a  trans-continental  railroad;  and  that  man's  reputation  was 
blasted,  and  where  is  he  now  ?  Lying  in  his  grave  in  northeastern 
Massachusetts,  killed  by  a  scandal." 


678  MODERN  JURY  TRIAL8. 

"I  saw  another  man  there — an  eminent  journalist;  a  traveler  and 
politician;  a  man  in  the  state  of  New  York,  where  so  many  years 
he  had  lived,  and  who  was  almost  worshipped  by  his  democratic 
constituents,  and  where  is  he?  In  his  grave,  killed  by  that  same 
scandal.  I  tell  you,  gentlemen,  slanders  of  this  sort  are  no  trifles; 
scandals  of  this  sort  are  not  to  be  breathed  away  by  the  eloquence 
of  counsel.  And,  gentlemen  of  the  jury,  if  such  is  the  effect  upon 
a  man,  what  is  the  effect  upon  a  woman  ?  My  associate  has  dwelt 
upon  this  subject.  I  do  not  need  to  enlarge  upon  it,  but  you  know, 
and  I  know,  that  a  woman  who  loses  her  virtue  is  despised;  and  I 
tell  you  no  verdict  which  you  can  give  will  ever  remove  and  wash 
out,  and  efface  the  stain.  I  tell  you,  that  BO  long  as  this  poor 
unfortunate  girl  shall  walk  the  streets  of  that  prosperous  city,  there 
will  be  the  shrug,  there  will  be  the  sneer,  there  will  be  the  under- 
tone of  the  young  man,  there  will  be  the  shrug  of  the  shoulder  of 
the  married  woman;  there  will  be  the  low  laugh  of  the  men  and 
women  in  the  barber  shops  and  in  the  millinery  shops  as  she  passes. 
Wide-spread  and  far  descending  will  be  this  stain.  A  life  of 
purity  in  the  future,  such  as  it  has  been  in  the  past,  gentlemen,  I 
regret  to  say — such  is  the  nature  of  human  affairs — can  never 
remove  that  stain.  Gentlemen,  I  tell  you  this  is  no  light  offense; 
counsel  stands  up  in  court  and  admits  the  speaking  of  the  words 
and  admits  that  they  were  false,  and  asks  for  a  verdict  of  nominal 
damages.  There  was  a  time  when  the  offense  would  have  been 
atoned  for.  There  was  a  time  when,  if  the  defendant  had  acted  as 
a  Christian  woman  should  act — I  say  nothing  harsh,  I  say  the  truth 
— there  was  a  time  when  some  simple  word  of  apology,  simple 
word  of  confession,  simple  word  of  giving  her  authority,  simple 
word  disclaiming  malice,  and  this  case  never  would  have  come  into 
the  doors  of  a  court  of  justice.  But  she  would  not  give  her  author- 
ity; she  would  not  implicate  anybody  else;  she  did  not  know  Mrs. 
McBain;  she  did  not  know  the  girl;  it  was  a  matter  of  entire  indif- 
ference to  her.  How  would  you  feel  were  you  to  be  ejected  from 
the  threshold  of  a  neighbor  upon  whom  you  had  waited  in  a  kindly 
manner,  as  did  Mr.  McBain  and  his  wife,  feeling  that  wound  rank- 
ling their  hearts,  and  which  will  rankle  until  those  hearts  shall 
cease  to  beat,  and  the  feet  of  men  shall  carry  them  to  that  'house 
appointed  for  all  living.' 

"  Have  you  wives?  Have  you  wives  and  sisters?   Make  the  case 
your  own,  gentlemen  of  the  jury,  and  see  how  you  would  feel. 
******** 

fi  So  it  is,  gentlemen  of  the  jury,  I  tell  you  the  average  common 
sense  which  is  gathered  in  the  jury  box  sees  the  value  of  female 


CLOSING  PERIODS.  077 

rirtue.  Why,  gentlemen,  in  the  range  of  my  experience,  I  remem- 
ber another  case.  It  is  a  case  which  has  only  just  happened.  A 
large  wholesale  dry  goods  merchant  in  Detroit  at  the  present  time, 
had  a  very  pretty,  agreeable  and  virtuous  wife — a  near  neighbor  of 
my  own,  an  acquaintance  of  fifteen  years.  Her  husband  was  absent 
some  portion  of  the  time  in  the  city  of  New  York  purchasing  goods. 
The  tongue  of  slander  attacks  her,  and  from  the  mere  circumstance 
of  her  being  waited  upon  no  later  in  the  evening  than  nine  o'clock 
from  a  neigbor's  house  to  her  own,  she  is  charged  by  the  tongue  of 
a  slanderer  with  unlawful  intercourse  with  that  man.  In  a  month 
every  barber  shop,  every  millinery  shop  and  almost  every  private 
house  in  Detroit  was  full  of  that  miserable  and  atrocious  slander. 
And  that  woman  to-day  is  in  the  asylum  for  the  insane.  Her  intel- 
lect is  unsettled  ;  her  mind  forever  gone;  her  husband's  home 
blasted;  the  mother  of  his  children  taken  away  from  them  by  the 
tongue  of  the  slanderer.  Do  you  suppose  that  any  damages  which 
a  jury  might  award  could  ever  repair  that  injury?  Do  you  sup- 
pose that  $10,000  or  $20,000,  would  restore  light  and  joy  to  that 
husband's  house?  No,  gentlemen  of  the  jury,  no  more  than  any 
verdict  that  you  can  give  can  take  away  the  rankling  wound  from 
the  heart  of  poor  Mrs.  McBain.  She  told  the  counsel  who  asked 
her  here  whether  she  kept  a  memorandum,  or  whether  she  remem- 
bered the  day,  that  she  did  not  require  any  memorandum,  she  did 
not  require  to  remember  the  day.  Her  daughter,  her  favorite 
daughter,  her  pure,  virtuous  daughter,  had  been  vilely  slandered, 
and  do  you  suppose  to  her  dying  day  she  can  ever  forget  that 
language  ? 

You  know,  gentlemen,  how  it  would  be  in  your  own  case. 
I  want  you  to  make  the  case  your  own.  I  want  you  to  do 
unto  Mr.  McBain  as  you  would  that  a  jury  should  do  unto  you  in 
like  circumstances.  I  want  you  to  vindicate  the  reputation  of  this 
young  lady,  who  is  even  now  almost  a  child  in  appearance.  I 
want  you,  if  you  have  any  fair  daughter,  any  bright,  fair-haired 
daughter,  who  is  the  light  and  joy  of  your  house,  to  say  how  you 
would  feel,  how  you  would  do  if  the  tongue  of  the  slanderer  had 
attacked  her.  I  want  you  to  say  what  amount  of  damages  would 
satisfy  you.  You  know,  and  I  know,  that  damages  cannot  satisfy, 
but  we  also  know  that  we  must  relax  into  a  state  of  barbarism,  as 
it  were,  and  each  one  take  the  law  into  his  own  hands,  and  take 
away  the  breath  that  animates  the  body  of  the  slanderer,  adminis- 
ter corporeal  punishment,  or  else  come  into  court  and  lay  our 
grievances  before  a  jury.  This  is  the  sole  remedy  known  to  the 
law.  Damages,  gentlemen  of  the  jury,  pecuniary  damages,  is  the 


878  MODERN  JURY  TRIALS. 

•nly  compensation  which  the  law  recognizes.  Imperfect  as  is  the 
retribution,  this  is  the  only  method  which  is  known  to  the  law. 
Now,  gentlemen,  I  want  you  to  say  what  sum  will  vindicate  this 
woman's  character,  what  sum  will  take  away  that  injury  from  the 
father's  heart? 

"  Gentlemen  of  the  jury,  vindication  is  what  we  want.  But  how 
is  vindication  to  be  expressed  ?  You  cannot  express  vindication 
by  'nominal  damages,'  which  my  brothers  come  here  and  beseech 
at  your  hands.  You  should  say,  inasmuch  as  this  thing  will  be 
spread  around  more  and  more  in  consequence  of  this  trial,  let  the 
same  persons  who  hear  of  the  trial  hear  that  a  righteously  indig- 
nant jury  who  heard  the  case,  gave  a  verdict  of  $5,000.  That  is 
the  way  you  can  repair  this  injury,  so  that  every  person  who  hears 
of  the  trial,  shall  hear  also  at  the  same  time  of  the  condemnation 
of  the  slanderer,  and  the  endorsement  of  the  purity  of  this  young, 
virtuous  girl." 

Verdict  $2,500. 

ARNOLD'S  CLOSING  IN  THE  MART  ANN  WHEELEB  CASE. 

On  October  14,  1852,  John  M.  W.  Lace,  while  looking  in  the 
window  of  Hopkins'  book  store  on  Wisconsin  street,  Milwaukee, 
at  some  political  caricatures,  was  asked:  "What  do  you  think 

about  politics,  John?"    Lace  replied,  "It's  all  a  d d  humbug." 

Instantly  a  pistol  shot  was  heard,  Lace  fell  dead  to  the  sidewalk — 
shot  through  the  spinal  marrow  by  Mary  Ann  Wheeler,  who  was 
at  once  arrested.  She  was  defended  by  Jonathan  E.  Arnold  of 
Milwaukee,  Wm.  H.  Tucker  of  Sandusky,  Ohio,  and  Wm.  Abbey 
of  Cleveland,  Ohio.  District  Attorney  A.  R.  R.  Butler  was  assisted 
by  Hon.  H.  L.  Palmer. 

Judge  Arnold,  then  an  eloquent  advocate,  made  the  closing 
argument  for  the  defense  which  began  as  follows: 

"  How  strange  are  the  vicissitudes  of  human  life  !  Two  persons, 
hitherto  almost  strangers,  become  suddenly  the  victims  of  a  train 
of  circumstances  by  which  one  is  hurried  to  a  premature  grave, 
and  the  other,  after  months  of  incarceration  in  a  loathsome  jail,  is 
arraigned  before  a  jury  of  the  county  on  a  charge  of  willful  mur- 
der. For  what  wise  purposes  these  vicissitudes  have  been  made  a 
part  of  the  destiny  of  man  has  never  been  revealed  to  us  by  the 
Author  of  our  existence.  Had  He  apportioned  the  incidents  which 
beset  our  path  to  the  degree  of  our  rank  in  the  scale  of  created 
being;  had  He  subjected  us  only  to  the  whirlwind,  the  earthquake, 
or  the  tornado,  it  might  have  seemed  to  our  limited  capacities  some 


CLOSING  PERIODS.  679 

slight  proof  of  the  superiority  of  our  nature.  But  we  are  humbled 
to  the  dust  when  we  reflect  that  the  very  worm  that  crawls  at  our 
feet,  that  his  life  is  held  by  as  strong  a  tenure  as  man  in  all  the 
glory  of  his  strength." 

"It  has  been  supposed  by  some  that  the  fear  of  death  was 
implanted  in  the  constitution  of  man  in  order  to  restrain  him  from 
the  exercise  of  that  larger  share  of  power  with  which  he  is  endowed. 
But  all  other  animals  upon  our  globe  have  been  created  with  lim- 
ited capacities  and  limited  spheres  of  action.  Their  power  is  pres- 
sent.  It  does  not  extend  beyond  themselves,  and  hence  the  fear 
of  present  bodily  pain  has  been  supposed  to  be  sufficient.to  restrain 
them  within  their  legitimate  spheres.  But  for  man,  with  a  body 
framed  for  vigorous  exertion  in  every  clime,  with  a  mind  unlimited 
in  capacity  and  unceasing  in  effort,  for  man  whose  power  extends, 
not  only  to  the  present,  but  through  future  generations,  some 
stronger  restraint  has  been  necessary  than  the  fear  of  present  pain. 
It  consists  in  the  terms  of  that  unknown  region  to  which  we  are 
rapidly  hastening.  A  well-spent  life,  the  affections,  the  sorrows 
and  tears  of  those  we  love  may  persuade  us  of  our  merit,  the  prin- 
ciples of  proud  philosophy  may  sustain,  the  hopes  of  a  divine 
religion  may  console  us,  but  still  nature  will  assert  its  dominion, 
and  we  instinctively  shudder  at  the  silence  and  gloom  of  the  grave. 
There  sensuality,  ambition,  malice,  revenge,  all  passion  is  laid  low 
in  the  dust.  There  the  tenderest  earthly  ties  are  snapped  asunder 
forever.  There  Alexander  left  his  worlds  unconquered  and  Croesus 
parted  with  his  gold.  There  Bacon  forgot  his  learning  and  New- 
ton descended  from  the  skies.  There  friend  is  unlocked  from  the 
arm  of  friend,  brother  from  the  arm  of  brother.  There  the  father 
takes  the  last  look  of  the  body  of  his  cherished  son.  There  the 
doting  mother  day  by  day  and  night  by  night  moistens  with  her 
tears  the  clod  that  embraces  her  darling  infant  in  its  bosom.  Stoics 
may  reason,  philosophers  may  speculate,  the  hardened  may  scoff, 
the  thoughtless  may  smile,  but  there  is  a  voice  from  the  grave  that 
speaks,  that  will  be  heard  in  every  human  heart." 

"  But  awful  as  is  the  fear  of  death,  the  grave  and  the  future,  the 
history  of  our  race  illustrates  nothing  more  clearly  than  that  man 
is  still  prone  to  error  and  crime.  Arson  still  applies  the  midnight 
torch;  burglary  still  breaks  stealthily  into  our  dwellings;  insatiate 
lust  still  preys  upon  the  young  and  beautiful;  murder  still  stalks 
abroad  undetected,  unpunished.  Hence,  gentlemen,  you  see  at  a 
glance  the  very  foundation  of  our  criminal  law.  It  is  based  upon 
the  necessities  of  our  condition;  it  is  founded  upon  the  very  first 
principle  of  moral  ethics  and  is  designed  to  be  in  subserviency  to 


680  MODERN  JURY  TRIALS. 

the  laws  of  God.  The  rule  of  ethics  is  that  every  man  is  entitled 
to  do  whatever  he  pleases,  so  long  as  he  does  not  interfere  with  or 
trespass  upon  the  rights  and  the  equal  privileges  of  others.  Hence 
our  laws,  both  civil  and  criminal,  are  based  upon  the  necessities 
which  arise  from  social  organization  or  from  the  very  idea  'of  gov- 
ernment. They  are  based  also  upon  the  very  idea  that  the  natural 
condition  of  man  is  that  he  is  possessed  of  reason,  of  intellect,  of 
judgment,  of  conscience;  for  were  he  not,  laws  designed  for  reason- 
able  and  intelligent  beings,  for  reasonable  beings,  then  indeed  would 
be  futile  and  absurd.  Responsibility,  to  use  a  comprehensive 
term,  is  at  the  very  bottom  of  all  law." 

The  defense  was  moral  insanity.  In  the  exact  language  of  Mr. 
Arnold: 

"She  was  seized  with  an  irresistible  impulse  to 'kill  John  M.  W. 
Lace,  and  was  and  is  unaccountable  for  the  act."  *  *  *  "  And 
then  and  there,  with  her  own  right  arm  and  her  holy  arm  hath  she 
gotten  herself  the  victory."  *  *  *  "  She  was  the  subject  of  an 
overwhelming,  irresistible  impulse,  which,  at  the  moment  the  act 
was  committed,  wholly  deprived  her  of  that  free  agency  which 
makes  her  responsible  to  the  law." 

"  Whatever  may  be  your  disposition  of  her  fate,  she  will  meekly 
bow  to  her  doom.  If  you  shall  find  her  guilty  of  the  crime  of 
deliberate  and  premeditated  murder,  she  will  meekly  submit,  wait- 
ing only  her  appeal  to  that  tribunal  to  whom  the  motives  of  the 
human  heart,  the  mysterious  operations  of  the  human  mind  are 
known  with  perfect  knowledge.  If  you  should  restore  her  to  lib- 
erty, indeed  shall  her  heart  leap  for  joy,  and  her  whole  entire  life 
shall  be  devoted  to  God  and  her  race.  Restore  her,  restore  her  to 
liberty;  restore  her  to  her  family  and  her  friends,  restore  her  to 
the  open  arms  of  that  young  and  innocent  sister,  whose  devotion 
to  the  defendant  in  her  lonely  cell  for  months  is  deserving  of 
immortal  honor.  Restore  her  to  the  arms  of  that  doting  father, 
that  the  sun  may  again  shine  upon  his  life,  and  may  cheer  his  path- 
way to  the  grave;  that  his  declining  years  of  life,  that  have  been 
overcast  with  misfortune  and  with  poverty  and  with  wretchedness, 
may  be  cheered  at  last  by  the  presence  and  the  love  of  his  daugh- 
ter ;  and,  gentlemen,  restore  her  to  the  mercies  of  our  God  in  this 
mortal  life,  that  her  time  for  penitence  and  probation  may  be 
extended  as  God  shall  will  it  ;  and,  rest  assured,  that  from  this 
time  forth — day  by  day,  and  night  by  night — the  prayers  of  her 
heart  shall  ascend  to  God  that  the  choicest  of  heaven's  blessings, 


CLOSING  PERIOD.  681 

which  I  now  invoke  upon  your  heads,  shall  remain  and  abide  with 
you  forever." 
The  first  jury  disagreed  ;  on  the  second  trial  she  was  acquitted. 

GBN.  RODMAN'S  CLOSING  WORDS  IN  BTJFORD  CASE. 

"  The  gun,  instead  of  being  held  up  to  the  shoulder,  is  held  to 
the  hip,  and  the  entire  twelve  buckshot  go  into  his  body.  The 
same  deliberate  Tom  Buford  that  shot  at  Thomas,  the  same  delib- 
erate Tom  Buford  that  clubbed  the  eyesight  out  of  Ulysses  Turner, 
the  same  determined  man  that  had  his  own  way  against  all  opposi- 
tion, fired  the  fatal  shot,  and  Judge  Elliott  was  dead. 

"Judge  Elliott  was  as  noble  a  man  as  the  Lord  ever  created;  a 
good,  noble,  royal  gentleman  as  ever  drew  the  breath  of  life;  hand- 
some in  person,  weighing  one  hundred  and  ninety  pounds,  walking 
the  streets  with  the  tread  of  a  nobleman,  as  gracious  and  polite  to 
the  humblest  of  men  as  to  the  greatest  magnate;  a  clear,  strong 
intellect  and  the  warmest  heart.  This  was  the  man  that  was  struck 
down  to  earth  without  a  word  of  warning.  The  gun  goes  off  as 
clear  as  a  bell,  and  one  of  the  best  men  that  the  world  ever  knew 
dies  by  the  hand  of  an  unmitigated  assassin.  Now,  tell  me,  that 
because  he  could  not  sleep,  because  he  fell  in  love  with  a  beautiful 
woman,  because  in  the  silent  watches  of  the  night  he  had  communi- 
cation with  his  sister,  this  man,  having  no  business  to  keep  him  in 
Frankfort,  nothing  to  disturb  him,  naught  to  do  but  enjoy  himself — 
tell  me  why  this  man  shall  escape  the  penalty  of  the  law  for  this 
terrible  crime  ?  I  can  not  furnish  a  reason  why  he  did  this  thing. 
I  wish  I  could.  It  is  sufficient  for  us  to  bend  to  the  exigency.  It 
is  done.  He  has  been  indicted.  He  has  had  a  fair  and  impartial 
trial.  And  if  there  was  ever  a  case  that  came  under  my  observa- 
tion that  merits  the  severest  punishment  that  the  law  inflicts,  this 
case  merits  it. 

"  Oh  1  how  the  hearts  of  men  stood  still  when  Elliott  fell  in 
Frankfort's  streets !  *  *  *  But,  gentlemen,  while  you  have 
honor  enough  to  discharge  your  duty,  I  beseech  you,  have  courage 
enough.  I  appeal  to  you,  gentlemen,  by  all  the  considerations  that 
bind  us  to  law  and  order.  I  appeal  to  you  by  your  love  of  the 
constitution  and  laws  of  Kentucky.  I  appeal  to  you  by  the  desire 
to  see  the  reinstatement  of  law  and  order  among  us;  I  appeal  to  you 
to  say  that  justice  shall  be  done,  whether  it  be  a  case  from  Frank- 
fort or  anywhere  else;  whether  the  prisoner  be  the  scion  of  a  noble 
house  and  distinguished  name,  or  whether  he  be  of  the  lowliest 
condition.  I  appeal  to  you,  let  your  verdict  be  such  that  justice 
shall  be  rendered  and  the  murderer  punished. 


682  MODERN  JURY  TRIALS. 

"Is  there  nobody  else  to  be  considered  in  this  case  but  Buford? 
I  fancy  I  see  the  poor  widow  of  our  once  noble  judge,  as  she  ran 
shouting  out  to  her  dead  husband  lying  there,  his  heart's  blood 
streaming  from  his  breast.  I  fancy  I  see  her  as  she  left  in  her 
widow's  weeds,  with  her  head  bowed  down  in  grief  as  she  entered 
the  carriage  that  was  to  carry  her  to  her  humble  mountain  home, 
where  she  now  lives,  sad  and  alone,  and  friendless,  except  some  dis- 
tant relations  of  her  husband's,  to  convey  her  away  from  Frank- 
fort, where  she  had  lived  so  happily  with  the  man  she  had  proudly 
called  her  '  Mountain  King.'  And  if  any  man  was  ever  endowed 
by  nature  and  cultivation  and  worthy  of  the  name,  it  was  John 
Elliott.  And  the  man  who  slew  him,  they  say,  was  morally  insane. 
I  ask  you  if  it  has  come  to  this,  that  considerations  of  public  pol- 
icy and  safety  are  to  be  so  disregarded.  And,  if  they  are,  tell  me 
so;  tell  me  that  all  men  are  to  defend  themselves  by  the  level  of 
might  against  right,  and  then  we  shall  know  how  to  take  the 
strongest  measures  to  protect  ourselves. 

"Gentlemen,  do  your  duty,  and  give  a  splendid  lesson  to  Ken- 
tucky— a  lesson  that  shall  be  written  in  letters  of  fire  on  the  minds 
of  her  people — a  lesson  that  this,  and  all  future  generations,  shall  rise 
up  and  call  you  blessed,  and  the  verdict  of  all  time  shall  be,  '  Well 
done,  good  and  faithful  servants."* 

SOCRATES'  CLOSING  WORDS  TO  HIS  JUDGES. 

"Farewell,  my  judges;  it  is  now  time  to  go  away;  for  me  to  die, 
for  you  to  live;  but  which  of  us  shall  come  to  his  reward  and 
receive  the  homage  due  to  an  upright  conscience,  is  within  the 
sphere  of  an  infinite  and  unknown  God." 

GEN.  BRECKENRIDGE  CLOSING  HT  BUFORD  CABX. 

"He  watches  for  his  victim  and  executes  his  pre-determined  plan, 
and  in  the  trustful  hardihood  of  a  nature  that  always  despised  the 
law  and  held  the  restraints  of  civil  order  in  contempt,  he  tells  the 
truth;  that  truth  upon  which  you  are  asked  to  act,  and  by  which 
your  verdict  must  be  dictated.  And  yet  his  counsel  bear  the  dead 
body  of  the  slain  judge  into  this  court  of  justice,  with  the  ermine 
which  he  wore  so  stainlessly  all  reddened  with  his  heart's  blood, 
flowing  from  that  gaping  wound,  and  placing  by  this  dead  body 
the  prisoner,  bid  you  look  from  the  torn  heart  of  the  slain  to  the 
face  of  the  slayer,  and  upon  your  consciences  declare  that  the  hand 
which  struck  the  blow  was  that  of  a  madman  ! 

"  With  uncovered  and  bowed  head  and  saddened  heart,  I  stand 
by  that  body  and  appeal  to  you  to  do  your  duty.  Make  room  for 


CLOSING  PERIODS.  683 

the  stricken  widow,  who  pleads  only  for  the  right !  Kentucky 
comes  and  prays  that  you  will  do  justice,  justice  that  will  be  a 
lesson  forever  in  her  borders. 

"  Two  hundred  years  have  passed  since  the  life  of  a  judge  has 
been  taken  by  lawless  violence.  Kentucky,  sad  in  hope  for  her 
murdered  sons,  demands  of  you  such  an  example  that  two 
hundred  more  years  shall  pass  in  security  to  all  officers  of  the 
law  —  violated  without  an  excuse  in  a  law -governed  state.  The 
husband  says,  'I  am  protecting  my  children  only  through  the 
tender  mercies  of  its  officers,  whose  persons  must  be  sacred;  my 
juries  must  be  true  to  it  that  our  law  is  ample  to  protect  my  officers.' 
I  trust  a  brave  and  intelligent  jury,  selected  from  the  body  of  an 
enlightened  community,  to  remove  from  your  verdict  all  pleas  of 
sentimentality,  of  fine  phraseology  that  carries  evidence  of  insanity 
and  remembrances  of  crime  and  one  unwhipped  of  justice. 

"O,  gentlemen,  gives  us  one  more  crowning  proof  that  trial  by 
jury  is  not  a  farce  and  sham,  but  that  justice  can  be  enforced  by  a 
Kentucky  jury  according  to  the  law  and  evidence,  and  with  a  full 
sense  of  the  solemn  value  of  that  duty  to  be  performed. 

"  This  is  not  my  voice,  but  that  of  our  brother,  who  pleads  with 
you  by  the  side  of  this  dead  judge  and  this  living  prisoner.  I  have 
no  right  to  do  more  than  pray  that  God  will  give  you  strength  to 
do  your  duty,  your  whole  duty,  so  that  in  His  sight  you  can  stand 
upright,  and  if  the  verdict  which  your  consciences  require  deprives 
him  of  life,  he  will  owe  to  you  what  he  refused  before  his  blame- 
less visitation,  to  make  peace  with  that  God  who  will  judge  each 
of  us  for  the  just  verdict  in  this  trial." 

MAJOR   PENNIMAN,    OP   DETROIT,    CLOSING   A   MURDER   CASE,    1881. 

"  The  clock  has  struck  twelve,  the  city  sounds  are  silent,  the 
lights  have  been  extinguished,  the  night  is  freezing  cold.  In  the 
back  room  of  a  den  of  shame,  four  women  sit  gloaming  around  a 
fire  which  causes  lights  and  shadows  to  play  upon  countenances 
that  notwithstanding  the  dissipations  of  the  day,  bear  traces  of 
beauty  and  womanhood.  Instinctively  they  feel  that  sympathy 
which  makes  the  whole  world  kin.  One  tells  a  story  of  childhood, 
some  strange  adventure  which  recalls  the  scenes  of  other  and  better 
days;  another  rehearses  the  dreams  of  youth,  and  perhaps  tells  of 
a  parent's  blessing  or  a  parent's  curse;  while  another  drops  unseen 
a  tear  over  hopes  which  sleep  in  the  grave  of  memory,  while  the 
other  tells  of  ghosts,  for  superstition  is  often  the  only  remaining 
attiibute  of  innocence.  An  hour  has  passed  and  all  is  silent;  still 


684  MODERN  JURY  TRIALS. 

they  sit,  cue  waiting  for  the  other  to  break  what  seems  an  unnatu- 
ral spell. 

"  The  deceased,  though  in  full  vigor  of  manhood,  has  but  a  few 
hours  to  live;  when  Minnie,  turning  her  dark  eyes  full  towards 
him,  says,  "Johnnie,  do  you  believe  that  spirits  of  the  dead  ever 
return  to  earth  ?'  '  Never,'  replied  the  deceased,  '  for  once  upon  a 
time,  in  company  with  three  others,  at  midnight,  about  this  hour,  I 
entered  the  peaceful  home  of  an  old  man  and  woman  to  secure  the 
treasure  which  industry  and  frugality  had  acquired,'  but  finding 
nothing  of  particular  value,  we  seized  them,  bound  them  hand  and 
foot  before  they  could  realize  that  they  were  awake,  and  when  we 
had  exhausted  all  efforts  to  force  from  them  the  desired  secret 
without  avail,  we  tortured  them  by  placing  their  feet  against  a 
red-hot  stove  until  they  were  burnt  to  cinders,  and  a  few  days 
thereafter  they  both  died  from  their  injuries,  and  I  know  that  if 
the  spirits  of  the  dead  could  come  back  to  earth,  I  should  have 
been  annoyed  by  the  ghosts  of  this  old  man  and  woman;  yet  I  have 
never  seen  or  expect  to  see  any  such  thing. 

"  O,  no,  no !  conscience  has  never  knocked  at  the  door  of  my 
heart;  I  have  seen  no  ghostly  hand  pointing  at  me;  fancy's  piercing 
sound  has  never  so  much  as  whispered  in  my  ear  the  names  of  those 
I  murdered.  The  curse  of  Cain  has  never  dashed  my  spirits,  and 
my  slumbers  have  never  been  disturbed  by  forebodings  of  Divine 
justice.  And  yet  you  are  invited  to  think  kindly  of  John  Fergu- 
son, in  order  to  condemn  his  wife  for  defending  herself  when  she 
had  every  reason  to  believe  his  huge  knife  at  her  very  throat. 

•          *          • 

"  Gentlemen,  the  angels  of  your  better  natures  will  rebel  against 
any  alliance  with  the  spirit  of  such  a  man.  He  was  entitled  to  no 
respect  while  living,  no  vindication  when  dead.  You  should  rather 
turn  to  the  prisoner,  who  has  become  emancipated  from  the  thraldom 
of  such  a  wretch,  and  in  the  spirit  of  divine  manhood,  say, '  Go,  and 
sin  no  more  1'"  .  .  . 

WM.  o.  P.  BRECKENSIDGE'S  CLOSING  nr  A  MALPBACTICB  CASK  (KY.) 

"And  this  is  the  fatal  conclusion — this  the  fact,  attested  by 
science,  and  proven  by  the  testimony — that  on  that  early  August 
morning,  1880,  this  doctor  defendant  burnt  out  the  eye  of  this 
woman,  the  plaintiff;  and  here  I  close,  for  I  have  not  the  heart  to 
weigh  in  words  the  value  of  an  eye  destroyed.  She  is  a  poor  man's 
wife,  so  poor  that,  with  her  own  hands,  she  cooks  the  daily  meals 
placed  on  the  table  of  their  humble  home,  around  which  the  once 


CLOSING  PERIODS.  685 

happy  family  now  gather  with  the  shadow  of  an  early  darkness,  to 
her  in  prime  of  womanhood.  A  mother's  heart  made  sad  by  this 
mournful  dread  of  total  blindness — already  half  complete — I  will 
leave  the  long,  dark  nights  of  pain,  the  throbbing  agony  of  all 
during  the  horrible  burning  out  with  lunar  caustic — torture  BO 
intense,  was  forgotten  in  the  mental  anguish  and  thought  of  utter 
blindness.  She  was  but  thirty-four,  and  fair  and  comely  ;  the 
mother  of  these  bright  young  girls,  and  though  her  home  was 
humble,  it  was  full  of  hope  and  happiness.  She  was  a  poor  man's 
idol  wife,  but  her  lot  was  cast  in  this  beautiful,  bounteous  land, 
where  life  and  health  are  almost  paradise;  where  the  fatness  of  the 
fields  brings  riches  to  the  industrious.  There  was  hope  in  their 
labor;  there  was  encouragement;  there  was  life;  and  in  an  instant 
all  went  out !  by  one  act  of  the  defendant.  Oh  !  gentlemen,  what 
money  can  compensate  for  her  hours  of  unutterable  grief? 
Fathers,  what  would  you  sell  your  daughters'  eyesight  for  ?  Hus- 
bands, struggling  for  independence,  laboring  from  dawn  to  dark, 
repaid  by  the  sweets  of  home,  and  all  the  joy  it  brings,  how  value 
you  your  own  wives'  eyesight  ?  If  it  were  only  the  constant  fear  of 
blindness  during  life,  with  which  she  is  doomed  to  live,  what  would 
compensate  her  for  such  misery  ?  But  to  know  in  every  day,  and 
every  hour,  in  every  joy,  in  every  labor,  the  latent  danger  of  being 
blind;  that  every  look  on  God's  sweet  smiles  in  nature,  and  his 
sweeter  likeness  in  those  she  loved  might  be  her  last.  What  is  all 
this  beauty  worth  to  you  ?  Add  to  this  the  dread  of  almost  certain 
blind  old  age,  and  poverty — for  only  with  her  help  was  fortune 
possible — hope  banished  before  its  noon,  the  future  blindness  of 
posterity.  Shut  your  eyes,  and  see  your  best  beloved  grow  old, 
and  poor,  and  blind,  and  then  write  your  verdict,  and  write  it  with 
a  liberal  hand.  These  '  windows  of  the  soul ' — these  gleaners  for 
the  heart,  how  they  bring  us  joy  and  wisdom  and  fond  recollection. 
How  I  remember  one  spring  day,  after  a  long  ailment  of  my  own 
vision,  almost  blind  and  saved  (confined  in  darkness  and  released), 
when  the  buds  were  swelling,  the  grass  brightening  and  blending 
its  greenness  with  the  wild  flowers,  and  the  fields  all  decked  in 
beauty,  with  the  clear  streams  glistening  in  the  sunlight,  and  birds 
full  of  music  and  melody  that  have  never  left  my  mind,  in  thanks 
to  the  Creator  and  giver  of  all  these  priceless  gifts;  how  I  thanked 
Him  for  eyesight;  and  while  this  great  world  lies  around  me,  and 
that  clear  sun  shines  above  me,  and  those  I  have  loved  are  dear  to 
me,  for  all  these  gifts  no  scales  would  weigh  their  priceless  value  ! 
Yet  this  gift  of  yours  (in  damages)  is  her  only  remedy.  You  can 
not,  alas  !  alas !  restore  this  darkened  eyesight;  but  you  can  secure 


686  MODERN  JURY  TRIAL& 

her  some  comforts,  for  books  and  schooling  for  her  children.  You 
can  stop  the  gnawing  pain  that  she  is  but  a  burden.  You  can 
place  a  staff  in  her  hand  to  lean  on  in  her  lengthened  hours  of 
darkness.  Will  you  refuse,  and  turn  her  out  injured  by  loss  of 
sight,  and  banished  from  your  mercies,  so  that  when  you  recall  this 
day,  it  may  haunt  you  in  solemn,  silent  reproach,  and  reproach  for- 
ever !  or  will  you  do  some  little  act  to  recompense  this  wrong, 
and  brighten  all  our  memories  with  one  day's  work,  well  done  ! " 
Jury  stood  eleven  for  heavy  damages,  but  disagreed. 

EXTRACT   OF   AN   ELOQUENT     OPENING     ADDRESS   BY   HON.    LEONARD 

8WETT,  OP   CHICAGO,  IN   THE    TRIAL    OF   R.    C.    8LOO, 

8HAWNEETOWN,   ILL.,  1857. 

"  Applying  these  principles  to  the  case  at  bar,  we  ask  our  oppo- 
nents whether  this  act  of  killing  seems  in  unison  with  the  character 
and  habits  of  the  mild  and  amiable  Robert  C.  Sloo  ?  To  the  con- 
trary, it  is  a  departure  so  wide  that  it  cannot  be  accounted  for 
upon  any  other  reasonable  hypothesis  than  that  of  disease.  I  will 
not  deny  that  good  men  may  become  corrupt,  and  he  of  tender 
heart  inured  to  bloodshed  and  crime.  The  experience  of  our  nature 
tells  but  too  truly 

•    •  ;    *     •     how  easy 'tis  to  fall, 
How  alow,  how  hard  to  climb.' 

But  the  rule  of  this  change  from  virtue  to  vice  is  by  slow  degrees, 
and  not  sudden  transition.  Look  out  upon  the  murderer's  face, 
furrowed  with  crime.  Was  that  record  written  there  by  God's 
creating  hand  ?  No;  it  came  slowly.  His  cradle  was  as  pure  as 
any  infant's.  Love  soothed  his  tender  cries,  and  affection  clasped 
him  fondly  to  her  bosom.  When  spring  time  called  him  forth  to 
revel  in  its  light,  the  violet  he  plucked  was  no  more  pure  than  he, 
In  after  life,  as  he  bids  his  early  home  good-by,  watch  the  tear  of 
tenderness  that  starts  unbidden  in  his  eye,  or  hear  that  prayer  to 
Almighty  God  for  guidance  and  aid  that  flutters  on  his  quivering 
lips.  Ah!  little  does  he  dream  that  the  summer  of  life,  with  its 
mists  and  heat,  is  upon  him,  and  that  its  gales  will  chase  storms 
and  shadows  over  his  path.  Faint  thoughts  of  evil,  like  the  dis- 
tant cloud  the  sunlight  gilds,  come  first.  He  yields.  Henceforth 
his  course  is  slowly  downward.  One  transgression  paves  the  foot- 
step to  the  second.  Crime  sweeps  over  him,  wave  upon  wave, 
and  surge  upon  surge,  until  the  remembrance  of  early  purity  in 
the  distance  of  years  only 

•    »       •       •         Seem 

The  relics  of  a  splendid  dream.1 


CLOSING  PERIODS.  687 

"  Not  so  this  defendant.  The  character  of  this  act  is  a  change 
from  his  gentleness  of  heart,  as  unnatural,  as  impossible,  by  sud- 
den transit,  as  from  the  home  of  Dives  across  the  trackless  gulf  to 
Father  Abraham's  bosom.  Its  very  baseness  pleads  in  his  defense, 
and  goes  far  to  illustrate  the  tendency  of  this  disease  that  for 
years  has  drained  the  substance  of  his  life.  The  proof  upon  the 
subject  of  this  disease  will  be  clear  and  unquestionable.  Its  ten- 
dency is  to  engender  suspicion  and  mistrust,  to  make  the  sufferer 
avoid  his  friends,  become  shy  and  distrustful  of  everybody. 

"  His  true  relations  to  the  world  become  perverted  ;  he  views  his 
friends  with  distrust,  and  exaggerates  the  number  and  bitterness  of 
his  enemies.  Just  then,  Hall's  hostility  appears.  I  will  say 
nothing  to  blacken  his  memory,  but  it  must  necessarily  be  known 
to  you  that  he  was  hostile  to  the  Sloo  family,  and  made  remarks 
injurious  to  their  reputation.  He  talked  about  them  in  the  streets. 
He  said  bitter  and  slanderous  things  about  the  defendant's  mother 
and  sisters.  He  abused  the  defendant  himself,  and  openly  and  on 
all  occasions  assailed  the  character  of  his  father.  Not  content 
with  this,  he  published  his  vile  slanderings  in  adjoining  counties 
and  spread  them  broadcast  throughout  your  own.  No  man,  how- 
ever strong  and  vigorous  in  mind  and  body  could  have  heard  these 
things  without  feeling  his  hot  blood  boil  within  him. 

"  You,  sir ;  you  have  braved  the  frost  of  years  ;  may  have  a 
daughter,  the  pride  and  solace  of  your  age ;  at  her  jocund  laugh 
your  steps  move  lighter.  You  palliate  in  your  own  thoughts  your 
very  wrongs  by  remembrance  of  the  virtuous  love  you  bear  her. 
More  tenderly  than  the  choicest  flower  your  homestead  yields,  you 
have  watched  her  growth,  fresh  in  her  beauty  and  bursting  in  her 
bloom.  Let  the  spoiler  come  to  her  purity  of  heart,  or  the  fair 
fame  she  enjoys,  and  I  mistake  the  flash  of  that  gray  eye,  if  the 
spirit  of  the  pioneer  would  not  be  roused  in  her  defense.  You,  sir, 
younger  in  years,  may  have  a  father,  who  guided  your  footsteps  in 
the  feebleness  of  infancy,  and  to  whom,  in  return,  you  owe  allegi- 
ance and  protection.  If  you  should  see  him  assailed  by  vitupera- 
tion and  slander,  or  accused  by  dishonesty  and  wickedness,  of  deep 
and  vile  guilt,  would  no  unpleasant  feelings  be  aroused  ?  Doubly 
so,  in  this  young  man  whose  brain  was  diseased,  and  diseased  in  a 
manner  that  provocation  touched  his  heart  as  the  coal  touches  the 
powder  to  explosion.  His  very  disease  inclined  him  to  be  suspi- 
cious; to  suspect  even  his  friends.  Whenever,  then,  the  man 
appeared  who  attacked  the  reputation  of  father,  mother  or  sister, 
it  fed  that  morbid  feeling;  and  the  provocation  and  the  resentment 
connected  themselves  the  one  to  the  other,  as  the  ivy  to  the  oak, 


MODERN  JURY  TRIALS. 

drawn  thus  together  by  the  yearning  tendencies  of  the  one  and  th« 
kindly  roughness  of  the  other.  This  is  the  secret  and  the  truthful 
key  to  this  most  lamentable  tragedy. 

"  Gentlemen,  you  are  about  to  listen  to  the  evidence  for  the 
defense.  I  thank  you  one  and  all  sincerely,  both  for  myself  and 
client,  whose  hunted  life  finds  shelter  in  your  hands,  for  the  kind- 
ness and  earnest  attention  you  have  given  me  this  morning.  I 
have  extended  my  remarks  longer  than  I  intended.  I  only  plead 
the  paramount  importance  of  the  cause  I  advocate  as  an  excuse  for 
so  doing.  I  am  about  to  leave  the  case,  so  far  as  its  opening  ia 
concerned,  with  a  firm  conviction  that  you  will  attentively  listen 
to  the  truth,  under  whatever  form  or  name  it  may  come.  Your 
province  is  a  sacred  one.  God  has  breathed  into  this  young  man 
his  own  heavenly  gift  of  life;  through  his  infancy  and  youth; 
through  his  wanderings  and  efforts  of  earnest  endeavor,  even  in  this 
fearful  act;  and  in  his  prison  home,  where  the  death  damp  gathers 
and  the  sunshine  is  a  stranger  guest,  he  has  kept  that  life  he  gave, 
and  now  has  suffered  you  to  be  called  from  your  various  homes 
to  receive  it  into  your  keeping — to  stifle  in  choked  mutterings, 
or  to  extend,  as  to  your  poor  judgment  shall  seem  fit  and  proper 
to  do.  You  tread  upon  holy  ground.  In  humbleness  approach 
your  task,  looking  constantly  for  guidance  to  that  throne  in  heaven 
whose  sovereign  '  doeth  all  things  well.' "  (Acquitted.) 

[Mr.  Swett's  exhaustive  and  eloquent  argument  in  the  Hanniford 
self-defense  trial,  at  Chicago,  in  1880,  is  reluctantly  omitted,  as 
anything  less  than  an  elaborate  report  of  the  trial  would  not  sat- 
isfy the  present  divided  public  sentiment  on  the  subject.] 

JUDGE   CUETIS   IN   THE    HELMBOLD    CASK. 

"The  proof  is  ended  and  the  story  is  told,  and  I  commit  the  des- 
tiny of  Dr.  Helmbold  to  his  judges. 

"  God  in  his  providence  has  permitted  him  to  view  the  terrible 
calamities  by  which,  more  than  other  men,  he  has  been  tried. 

*•  He  rises  in  this  dark  hour  superior  to  the  machinations  of  those 
wno  have  endeavored  to  destroy  him.  He  invokes  the  administra- 
tion of  justice  and  the  protection  of  the  law.  In  his  marvelous 
career  how  vividly  do  we  see  depicted  the  uncertainty  of  earthly 
prosperity  and  grandeur. 

"  Of  obscure  origin,  by  his  industry,  energy  and  capacity  he 
founded  a  business  that  extorted  revenue  from  all  the  nations  of 
the  earth,  that  brought  him  a  golden  harvest,  as  the  reward  of  a 
commercial  enterprise  so  broad,  liberal  and  comprehensive,  that 
while  it  had  its  origin  in  the  great  republic,  it  lost  not  sight  of  the 


CLOSING  PERIODS.  689 

remoter  realms  of  China,  and  the  peoples  dwelling  on  the  banks 
of  the  Ganges.  His  foes  have  stripped  him  of  his  estate,  have 
alienated  from  him  the  wife  of  his  bosom  and  the  children  of 
his  loins  ;  they  have  confined  him  in  those  earthly  hells — the  asy- 
lum for  the  insane — and  with  merciless  cruelty  more  conspicuously 
wicked  than  the  conduct  of  the  unnatural  children  of  King  Lear, 
they  have  sought  to  deprive  him  of  his  reason,  and  send  a  mad- 
man's soul  shrieking  to  the  bar  of  God.  In  fact  they  concen- 
trated upon  his  unhappy  existence  all  the  calamities  that  can 
affect  the  human  species. 

"  Rescue  him,  gentlemen,  from  the  peril  of  despair  ;  and  when 
you  and  he  appear  before  the  infallible  judge,  you  will  have  the 
supreme  consolation  of  knowing,  that  because  you  turned  not  a 
deaf  ear  to  the  voice  of  mercy  and  justice,  you  are  not  forgotten 
by  one  who  never  errs.  (He  was  declared  sane.) 

A  WESTERN  LAWYER   CLOSING    HIS   FIRST   CASE    (FROM  MEMORY.) 

"  I  feel  that  I  can  not  say  more,  gentlemen,  and  yet  when  I  turn 
to  this  unfortunate  young  man,  who  has  trusted  me  in  all  his 
trouble,  I  hesitate  to  close.  Liberty  to  him  is  a  precious  boon  ; 
he  longs  to  be  free,  and  return  to  his  home  and  friends  who 
surround  him  here  to-day. 

"In  the  name  and  honor  of  these  people  who  do  not  desert  him 
in  his  sore  distress,  take  him.  I  would  put  his  hand  in  your  hand, 
and  ask  you  where  will  you  lead  him  ?  "Will  you  take  him  to  the 
doors  of  a  dungeon  ?  Will  you  close  the  walls  of  death  upon  him 
forever?  Will  you  snatch  from  his  grasp  all  that  is  dear  to  him 
in  life,  in  this  bright  and  beautiful  world  of  ours,  or  will  you  free 
him  ?  Will  you  bind  him  in  irons,  or  loose  him  and  let  him  go 
free;  and  say  he  may  be  wrong,  he  may  be  right,  but  not  by 
my  vote  shall  his  young  life  be  blotted  out  forever! 

"I  know  how  often  your  minds  have  wandered  home;  how,  some- 
times, in  this  big,  dreary  city  you  would  almost  long  to  see  even 
a  favorite  dog  from  the  old  farm  house — from  your  home  !  You 
have  counted  the  weeks,  counted  the  days,  and  will  soon  begin 
to  count  the  hours  when  you  shall  take  your  little  girls  to 
your  arms  and  bless  them,  and  tell  them  how  you  longed 
to  come  before  —  and  you  will  soon  forget  this  little  stay 
in  town;  but  he  will  not  forget  it?  If  you  twelve  men  agree  that 
he  is  guilty  (and  nothing  less  than  twelve  can  convict  him),  you 
may  sleep  as  soundly  as  you  will,  but  on  some  night,  some  dark 
and  cloudy,  dismal,  rainy,  sleety,  dreary  night,  when  the  angry 
winds  grow  wild,  will  you  not  think  of  those  dismal  cells  where 

44 


69C  MODERN  JURY  TRIALS 

women  caT.  in  pleading  tones  for  mothers,  where  lightning  flashes 
light  up  the  dark  faces  of  despair,  where  men  and  women  live  in 
hopeless  agony,  and  wrinkle  and  grow  old  in  pain,  and  sometimes 
die  a  martyr's  death. 

"But,  gentlemen,  I  am  nearly  done;  I  should  say  no  more.  And 
have  I  said  enough  ?  If  he  were  your  boy  would  you  not  have 
me  linger  and  say  more?  Do  you  realize  what  liberty  is?  To 
you  who  walk  the  streets  and  smell  the  fresh  spring  flowers,  and 
hear  the  songs  of  birds,  and  drink  in  the  bright,  clear  music  of  the 
morning,  do  you  know  how  good  it  is  to  live  ?  That  poor  fellow 
that  was  released  from  Auburn  prison,  and  halted  as  he  walked 
out,  seeming  to  feel  he  must  yet  come  against  walls  and  grates, 
that  had  met  him  sixteen  long  years,  when  he  looked  up  and  saw 
the  sun  in  heaven  and  tested  the  pure  air,  said  :  '  Oh,  how  sweet 
the  air  smells  !  I  never  knew  the  sunlight  was  so  good  before  !' 
And  then  he  would  walk  out  and  back,  and  move  his  arms  and 
limbs  and  almost  drink  the  sweetness  of  the  day ! 

"We  do  not  know,  gentlemen;  you  have  been  here  a  mouth  from 
your  homes.  Have  you  seen  through  the  bars  a  haggard  form  of 
misery  praying  for  release — an  innocent  form,  it  may  be,  inveigled 
into  sin,  and  suffering  the  shame  of  accident,  or  evil  company. 
Why,  gentlemen,  it  is  a  lifelike  picture  to  repeat  their  story. 
Their  moans  are  like  the  wailing  of  the  damned  !  I  have  heard 
them  from  the  prison-keepers  by  the  hour,  to  study  the  story  of  a 
man  in  irons.  I've  read  it  from  Hugo  the  Great,  and  yet  but 
faintly  realize  it. 

"  O,  men,  take  this  captive,  and  where  will  you  lead  him  ?  Where 
will  you  leave  him?  Take  him  where  you  will,  you  are  his  judges. 
I  will  leave  you,  and  leave  with  you  this  fair-haired  boy,  a  wan- 
derer from  the  paths  of  duty.  I  will  leave  you  as  strangers  part 
on  a  foreign  shore,  never  to  look  in  your  honest  faces,  till  the 
summons  of  the  mighty  judge  shall  call  his  children  home,  and  on 
that  awful  day  will  be  said  to  us,  and  to  all  of  us,  have  you 
remembered  mercy  ?  We  will  meet  each  other  there  ;  our  masks 
will  all  be  torn  away,  the  books  will  be  opened,  the  volumes  will 
be  read,  the  question  put  to  each :  '  Have  you  remembered 
mercy?'  And  how  can  you  answer  if  'tis  said:  'They  that 
judge  without  mercy  shall  be  judged  without  mercy  ! '  Let  it 
not  be  this  unfortunate  that  shall  hinder  mercy  in  your  behalf, 
that  shall  enforce  the  lesson  :  *  Worse  than  bloody  hands  are 
hard  hearts;'  but  may  your  work  to-day  plead  in  touching  tones 
in  your  behalf,  that  what  you  have  done  to  others,  you  are  wil- 
ling should  be  done  to  you.  (Acquitted.) 


CLOSING   PERIODS.  691 


ARNOLD   AND   BTAN    CLOSING   THE   HUBBELL   IMPEACHMENT   CASE. 

In  1853,  the  "ate  Judge  Levi  Hubbell,  the  Judge  of  the  Circuit 
Court  for  Milwaukee  County,  was  impeached  by  the  Assembly  for 
nigh  crimes  and  misdemeanors  in  office.  The  trial  was  held  in  the 
Senate  Chamber  at  Madison.  The  charges  were  eleven  in  number. 
The  preliminary  proceedings  occupied  six  days.  Mr.  Ryan  made 
an  opening  argument  on  all  the  charges,  occupying  nearly  the  entire 
day.  The  testimony  for  the  prosecution  was  then  taken,  occupying 
till  June  27,  when  Mr.  Arnold  made  the  opening  argument  for  the 
defense,  and  the  examination  of  witnesses  continued  till  July  5. 
On  that  day  Mr.  Knolton  commenced  summing  up  for  the  de- 
fense, occupying  two  days.  Mrs.  Hubbell  was  at  that  time  lying 
ill  at  the  house  of  a  friend  near  to  the  Capitol.  Mr.  Arnold  made 
the  closing  argument  for  the  defense,  occupying  an  entire  day,  and 
concluded  as  follows  : 

"  And,  in  yonder  cottage,  almost  within  the  hearing  of  my  voice, 
there  is  yet  another  who  is  waiting,  with  intense  solicitude,  the  re- 
sult of  your  deliberations.  She  waits,  in  unshaken  confidence  and 
devoted  love,  for  the  accused.  She  is  in  deed  as  well  as  in  law  the 
wife  of  her  husband,  and  she  would  clasp  that  man  to  her  breast, 
though  her  arm  were  in  a  flame  of  living  fire  till  it  burned  to  its 
A-ery  socket  ;  her  prayers  are  all  around  you — her  hopes  are  all  de- 
pendent on  you.  On  bended  knee,  and  with  eye  uplifted  prayer- 
fully to  Heaven,  before  you,  she  implores  you  :  *  O,  give  me  back 
the  husband  of  ray  youth  !  I  can  surrender  him  to  God — I  can 
surrender  him  to  my  country — but  O  !  spare  the  blow  which,  while 
it  destroys  him,  dooms  me  to  lean  upon  a  broken  reed,  and  to  a  life 
without  a  hope.'  Fell  blow,  indeed,  which  would  destroy  the  pros- 
pects of  one  so  young  and  beautiful,  which,  in  a  moment,  would 

Change  the  current  of  her  sinless  yean, 

And  torn  her  pare  heart's  purest  blood  to  tear*. 

Her  arms  are  outstretched  to  receive  him,  and  their  embrace  will 
be  warmer  and  purer,  should  the  judgment  of  this  court  vindicate 
the  honor  and  fame  of  her  husband  in  the  judgment  of  the  world." 

MB.  RYAN'S  CLOSING. 

He  said  :  "  It  was  said  that  this  trial,  that  the  evidence  in  this 
cause,  had  demonstrated  this  man's  innocence,  to  those  who  doubted 
it  before  ;  that  the  ordeal  of  tria.  had  demonstrated  his  personal 


692  MODERN  JURY  TRIALS. 

and  judicial  purity  to  the  world.  Why,  then,  if  thus  sustained  by 
universal  judgment  of  the  public,  by  the  foreshadowed  judgment  of 
this  court  appointed  to  try  him,  by  his  own  conscience  ;  why,  thus 
perfectly  sustained  in  coming  pure  out  of  the  fire  that  tried  him, 
with  the  angels  of  heaven  to  watch  by  him  here  in  the  furnace  in 
which  his  innocence  is  only  proved  ;  why  kneel  to  this  court  in 
cringing  appeals?  Why,  Mr.  President,  had  I  yesterday  to  hear 
the  same  pathetic  declamation,  to  see  the  same  mockery  of  tears, 
that  I  saw  and  heard  upon  the  trial  of  Radcliffe,  the  murderer? 
Why,  upon  this  trial  of  a  judge  who  stands  upon  his  innocence,  of 
a  judicial  officer  who  here  says  that  he  is  innocent,  who  boasts  that 
all  the  disclosures  here  have  but  tended  to  demonstrate  his  inno- 
cence, to  redouble  the  faith  of  his  friends  in  bis  innocence,  and  to 
convince  even  his  enemies  of  his  purity  ;  why,  if  all  this  security  of 
innocence  was  here,  were  the  privacies  of  domestic  life  dragged 
into  this  court  to  move  the  heart  of  justice  ;  crying  craven,  weep- 
ing this  court  to  have  compassion  upon  the  innocent  victims  of  his 
guilt  ?  It  was  bad  taste  ;  it  was  bad  feeling.  And  knowing  the 
learned,  eloquent,  and  able  counsel,  as  I  know  him,  I  cannot  think 
it  was  the  prompting  of  either  his  taste  or  his  feeling  to  do  it." 
Judge  Hubbett.  "It  was  not  my  taste,  and  you  know  it." 
Mr.  Ryan.  "  I  know  the  gentleman.  I  know  the  learned  counsel 
well.  I  ought  to  know  him  well  at  this  time  of  day  ;  and  I  do  not 
believe,  when  he  said  in  presence  of  this  court,  that  he  stood  here 
not  merely  as  counsel,  but  that  he  stood  here  as  the  defendant's 
personal  and  judicial  friend,  I  do  not  believe  that  he  would  of  him- 
self have  cringed  to  this  court,  that  he  would  have  invoked  the 
mercy  of  and  compassion  for  women  and  children,  the  dead  and  the 
unborn,  to  mitigate  the  judgment  of  man  upon  man." — Judge  Hub- 
bell  ic  as  acquitted. 


PUBLIC  SPEAKING.  693 


PUBLIC    SPEAKING. 

The  very  latest  style  in  speaking  is  the  Beecher,  Phillips,  Lin- 
coln, Chamberlin  style  of  animated  conversational  tones,  with 
something  to  say  worth  hearing,  and  said  with  intense  earnestness 
as  to  enlighten,  illumine  and  convince  an  audience, — the  loud  or 
very  dramatic  tones  become  tiresome. 

Of  course,  the  President  with  his  manuscript  in  one  hand  and 
clenched  fist  in  the  shape  of  a 'fighter,  by  his  very  intensity  secures 
a  wide  hearing,  but  McKinley  was  just  as  convincing  in  the  con- 
versational method,  and  to  put  it  tersely,  if  one  can  use  a  broad 
sword  or  a  bayonet,  he  need  not  use  a  razor.  It  depends  on  the 
man  and  the  occasion.  But  what  is  said  more  than  how  said  is 
most  effective — as  witness,  Attorney  Littleton,  less  eloquent  and 
far  less  flowery,  yet  successful — where  Delmas  only  divided  a  jury, 
one  made  a  reputation  for  eloquence,  the  other  gained  a  victory 
and  saved  a  prisoner  to  his  family.  Yet,  who  knows  who  did  the 
finer  service  ?  Not  one  single  conviction  of  that  kind  has  occurred 
in  two  hundred  years  in  our  country,  and  was  it  a  case  for  convic- 
tion, or  was  it  a  case  for  self-defense  ? 

Public  Speaking  is  more  and  more  forestalled  by  the  Public 
Press,  and  is  a  little  on  the  wane  in  many  cases;  occasionally  in 
cases  like  the  Thaw,  or  the  Haywood  trials,  a  forceful  speaker  is 
of  signal  benefit  in  moulding  public  sentiment,  as  did  Darrow  in 
Haywood's  trial  in  a  brilliant  victory,  or  Folk  in  the  St.  Louis 
bribery  cases,  and  it  seems  that  the  graft  in  Philadelphia,  Cin- 
cinnati, St.  Paul,  Toledo,  Milwaukee  and  New  York  is  just  now 
affording  a  rich  field  for  the  finer  advocates. 

PREPAREDNESS. 

I  listened  to  Bishop  Williams  as  he  read  with  deep  interest  his 
lecture  on  Predatory  Riches — where  the  matter  was  even  more 
eloquent  than  the  delivery,  and  both  were  brilliant.  I  heard 
Seymour  give  his  twelve  lectures  on  leading  characters  in  history, 
like  Caesar,  Mark  Antony,  Lafayette,  Thomas  a  Becket  and  the 
like,  and  a  more  pleasing  effort  altogether,  I  have  not  witnessed, 
and  am  assured  of  the  effect  of  both  of  their  methods.  This  is 
it  in  A,  B,  C,  form: 


694  MODERN  JURY  TRIALS. 

(a)  Think  out,  read  up,  fill  up,  master  and  commit  data,  and  any 
rare  saying  or  quotations. 

(b)  AVrite  out  in  longhand  so  as  to  measure  the  extent,  order  and 
scope  or  limit  and  what  it  is  to  cover  and  include,  not-omitting 
a  story  or  laugh  or  two — and 

(c)  Make  bold  notes,  extending  say  one  to  twenty,  and  number 

them,  then  commit  the  notes  to  memory  (a  short  task)  then 
irith  notes  in  side  pocket  and  nothing  in  sight,  rely  on  what 
you  say  by  what  you  know. 

Begin  calm — grow  warm — end  with  a  storm !  Yes.  Please  with 
a  paragraph;  attract  by  an  illustration;  convince  with  facts  and  a 
word  picture,  but  finally  paint  on  the  memory  a  clear  likeness  of 
your  theme — the  rest  is  all  practice. 


THE    SECRET   OF   FAME. 

"  There  w  not  less  icit  nor  invention  in  applying  rightly  a  thought 
one  finds  in  a  book  than  in  being  tlie  first  author  of  that  thougJit." — 
BAYLE. 

The  real  secret,  or  genius  of  fame,  is  in  loyalty  to  duty,  prepared- 
ness for  duty,  and  unselfish  adherence  to  some  great  plan  or  prob- 
lem to  solve  which  will  better  the  world  when  the  goal  is  attained. 
Lincoln  had  a  purpose  in  his  steady,  far-seeing  plans  of  preserving 
the  Union,  and  no  one  could  swerve  him  from  duty ;  a  less  consist- 
ent course  of  conduct — a  little  less  caution  and  wisdom — would 
have  made  a  war  with  England,  France  and  Spain,  which  he 
wisely  averted  by  patience  and  diplomacy. 

No  one  would  have  known  of  Sheridan  but  for  his  ride  to  Win- 
chester, and  the  horse  he  rode  was  a  match  for  his  master — 

By  the  gleam  of  his  eye  and  his  nostrils  play, 
He  seemed  to  the  whole  grand  army  to  say: 
I've  brought  you  Sheridan  all  the  way 
From  Winchestertown,  to   save  the  day. 

The  sturdy  Jap  uttered  a  strong  truth  when  he  cheered  his  brave 
men  who  were  about  to  blockade  Port  Arthur  by  saying,  as  thev 
drank  a  silent  communion  together: 

"If  I  had  a  hundred  sons,  I'd  send  them  all  in  such  an  enter- 


STORY  OF  DAMON.  095 

prise;  If  I  had  but  one  son,  I'd  bid  him  to  go  alone.  *  *  * 
I  would  not  have  you  think  lightly  of  your  lives,  for  not  one  in 
one  thousand  can  expect  to  return  unhurt,  but,  I  would  have  you 
think  of  your  duty  first  and  your  lives  afterwards.  *  *  *  And 
if  you  lose  your  right  arm  in  this  enterprise,  operate  with  your 
left;  if  you  lose  both  arms,  operate  with  your  feet  and  legs;  and  if 
you  lose  your  arms,  and  hands,  and  legs,  then  operate  with  your 
heads,  but  win  the  enterprise." 

They  won,  and  won  a  lasting  fame. 


STORY  OF  DAMON. 

You  know  the  story  of  Damon;  how  he  offended  the  King  of 
Syracuse  and  was  condemned  to  die  by  the  ax,  and  begged  for 
three  days  of  life  to  attend  his  sister's  wedding,  while  a  friend  re- 
mained bound  in  his  stead — and  a  friend  was  bound  in  his  place: 
how  Damon  attended  the  wedding  and  started  back  on  the  third 
day;  how  he  looked  up  at  the  sun,  saying:  "If  the  sun  should  go 
down  and  I  reach  not  yon  town,  my  friend  must  perish  for  me," 
never  thinking  of  himself  he  rushes  on. 

The  stream  he  had  crossed  on  a  high  bridge  has  risen  to  a  flood; 
the  bridge  has  gone  down  before  it,  yet  he  fails  not,  falters  not, 
halts  not,  but  plunges  on,  and  by  a  mighty  struggle  reaches  the 
opposite  shore.  He  could  have  faltered  at  the  bridge,  but,  more 
yet,  he  meets  seven  robbers  and  falters  not,  but  with  a  bludgeon  he 
lays  three  on  the  ground  and  the  rest  hurry  off  in  dismay !  *  *  * 

The  sun  is  nearly  down — the  scaffold  in  sight!  already  the  vic- 
tim stands  bared  for  his  fate;  already  the  deathsman  stands  armed 
for  the  blow.  But,  hark !  What  a  sound  is  uttered  around  saying, 
"Stay,  it  is  I,  it  is  Damon  for  whom  he  was  bound!"  Then  the 
King  is  touched  and  calls  Damon  and  Pythias  to  his  side  and  re- 
leases both  if  they  will  make  him  a  third  friend. 

There  is  no  more  loyal  character  of  friendship  in  all  history,  and 
no  character  better  than  that  of  Damon  points  the  road  to  fame. 
Had  Damon  faltered  at  the  bridge,  or  failed  in  courage  with  the 
robbers,  or  fainted  at  the  sight  of  his  friend  on  the  scaffold,  we 
would  have  never  known  that  Damon  ever  lived  I  It  was  his  loy- 
alty and  fidelity,  his  faith  in  right  and  duty  which  made  him  and 
Pythias  immortal  as  symbols  of  friendship  for  the  world  as  long 
as  loyalty  shall  be  known  and  honored  by  mankind. 


696  MODERN  JURY  TRIALS. 


LINCOLN'S  GREATNESS. 

A  hundred  years  will  not  pass  by  before  a  lasting  monument 
will  be  built,  in  Kentucky,  to  mark  the  fame  of  Abraham  Lincoln; 
and  why  ?  He  was  born  and  bred  a  Southerner,  in  Kentucky,  of 
Kentucky  parents,  and  lived  in  Kentucky  up  to  the  age  of  seven. 
True,  he  was  raised  in  Indiana,  developed  in  the  hardships  of  that 
middle  state,  where  his  mental  and  physical  preparedness  took 
form,  and  matured  in  Illinois;  but  he  was  a  thoroughbred  Ken- 
tuckian  full  of  the  chivalry,  courage  and  fair  play  of  a  generous, 
stalwart  race  of  intellectual  athletes. 

If  a  single  question  were  put  to  twenty  men:  which  was  the 
better  learned  man  in  books,  Washington  or  Lincoln  ?  a  majority 
would  say  Washington  and  be  all  wrong  in  their  conclusions. 
Washington  was  a  wealthy  man,  refined  in  manners,  pleasing  in 
appearance  and  commanding  in  dignity,  but  had  little  taste  for 
leading,  writing  or  debating.  He  was  not  a  speaker,  writer  or 
debater.  This  is  not  said  to  disparage  one  and  elevate  the  other, 
for  they  were  both  supremely  great  men,  the  greatest  Americans 
in  their  separate  centuries.  Lincoln  was  deeply  read,  a  constant 
student,  a  fine  debater,  and  a  farseeing  lawyer. 

Of  these  acquirements  Judge  David  Davis  and  Leonard  Sweet 
both  testified,  and  his  Douglas  debates  and  Cooper  Institute 
speech  give  conclusive  evidence  of  research,  logic,  and  deep 
thinking.  Of  his  forecaste  and  diplomacy,  it  is  enough  to  cite  his 
mattery  of  men  in  selecting  Stanton  and  Blair,  Grant  and  Sheridan, 
Medellan  and  Logan,  regardless  of  politics,  and  his  clinging  to 
Seward  long  after  Seward  had  nearly  provoked  war  with  England, 
France  and  Spain,  and  refusing  to  remove  Chase  as  an  unfriendly 
cabinet  officer. 

Any  lawyer  with  a  hundred  cases  in  the  highest  court  of  his 
state,  and  four  terms  in  the  legislature  in  Lincoln's  time,  would  be 
classed  an  able  lawyer.  Any  debator  who  could  match  Douglas, 
the  little  Giant  of  the  West — well  named — was  strong  in  debate. 
Any  statesman  who  could  outclass  Seward,  Chase  and  Stanton 
in  forecaste  was  a  seer  of  his  time .'  But,  greatest  of  all,  Mr.  Lin- 
coln refused  to  put  down  the  war,  or  free  the  slaves  without  the 
united  support  of  both  political  parties.  It  was  not  to  be  an 
Abolition  war,  but  a  war  to  save  the  Union. 


LAW  STORIES.  697 

To  form  a  true  measure  of  the  man,  let  us  select  five  sentences 
from  the  greatest  philosophers:  Socrates  said:  "A  great  souled 
man  will  not  be  given  to  small  ambition;  he  will  be  considerate 
of  the  rights  of  others,  even  of  their  slaves;  but  above  all  things, 
a  great  souled  man  will  be  an  unselfish  man."  And  Eschimes 
said :  "  The  character  of  a  people  is  known  by  the  men  they  crown." 
While  Demosthenes  said :  "  Man  is  not  born  to  his  parents,  only, 
but  to  his  country."  And  Croesus  said :  "  Take  this  lesson  to  heart 
for  I  am  reminded  O,  King,  that  there  is  a  wheel  on  which  the 
affairs  of  men  revolve,  and  its  mechanism  is  such  as  to  prevent  any 
man  from  being  always  fortunate."  Lincoln  was  promoted  be- 
cause he  earned  his  promotion.  It  was  not  an  accident  but  merit 
which  produced  his  promotion.  He  was  successful  by  earning  his 
success.  He  is  honored  by  acts  so  great  and  unselfish  as  to  com- 
mand distinction.  The  growth  of  his  fame  is  a  gradual,  increasing 
and  lasting  growth.  The  South  has  just  commenced  to  honor 
Lincoln.  The  wheel  that  turned  hard  against  him  many  times  is 
rapidly  turning  in  favor  of  his  fame.  Had  he  lived  in  ease  and 
attained  greatness  at  a  single  bound,  men  would  be  jealous  of  his 
place  in  history,  but  his  was  an  unselfish  battle  with  adversity, 
which  millions  admire. 


LAW    STORIES. 

A  Story  is  Good  if  Well  Told, 

Law  stories  are  rarely  new.  Caught  on  the  run  they  are  knocked 
about  and  worn  threadbare  through  the  Journals  in  quick  suc- 
cession, and  few  know  how  to  apply  them  without  explaining 
away  the  real  meat  of  the  moral  in  the  story,  which  should  stand 
alone  for  days  if  need  be,  to  be  applied  as  the  mind  of  each  reader 
or  hearer  may  discern  the  real  purpose. 

Take  an  instance :  A  merchant  and  newsboy  were  walking  along 
the  same  street  which  was  wet  and  slippery,  when  the  boy  slipped 
and  fell  full  length  on  the  sidewalk.  The  man  said,  "  Can't  you 
stand  up,  little  man  ?"  The  witty  little  fellow  said,  "Well,  I  fell 
down  notwithstanding."  The  man  saw  the  joke  and  carried  it 
home  to  tell  to  an  evening  company,  which  he  did  in  this  manner: 


698  L10DERN  JURY  TRIALS. 

I  was  walking  along  down  street,  and  got  a  bright  answer  from  a 
newsboy  that  I  fancy  was  quite  clever.  The  little  fellow  slipped 
and  fell  full  length  on  the  sidewalk.  I  said,  "  Can't  you  stand  up 
my  little  man  ? "  And  he  turned  on  me  with  quick  answer  "  I 
fell  down  nevertheless."  Nobody  laughed. 

A  German  fitted  up  a  fine  barber  shop,  marble  washstands, 
and  Brussels  carpets,  mahogany  sideboards,  and  fine  mirrors, 
and  a  photographer  next  up  above  him,  left  the  faucet  run  over 
Sunday,  wetting  the  barber's  carpets,  causing  the  plaster  to  drop 
dust  and  spatter  all  over  his  fine  furniture,  and  when  told  about  it, 
he  made  light  of  it.  Asked  to  make  it  good,  he  replied  "  Oh,  you 
go  to  h — 1, "  and  the  barber  brought  suit  in  a  Justice  Court,  before 
a  jury. 

On  the  trial  the  barber  was  his  only  witness,  and  stated  what 
had  been  told,  to  the  jury  with  great  candor.  When  the  lawyer 
prompted  him,  saying,  "  And  what  did  you  say  ?  "  "I  said  I  vill 
not  go  to  hell,  I  vill  go  to  law,"  and  then  rising  to  his  feet  he  said, 
"  Und  shentlemen  dot  vas  schust  so  bad  as  to  go  to  hell."  He  won 
a  fine  verdict  by  saying  the  right  thing  well. 

An  Englishman,  Irishman  and  Scotchman  were  dining  together, 
when  the  topic  turned  on  the  distance  either  could  see  in  his  own 
country.  The  Scotchman  could  see  to  Glasgow,  38  miles.  The 
Englishman  to  Birmingham,  42  miles  away.  The  Irishman  was 
slow  to  answer,  but  said  "Well,  gentlemen,  many  a  time  on  a 
clear  night,  I  have  seen  away  up  to  the  moon.  240,000  r^iles  away." 

(To  illustrate  a  place  to  settle  for  good.)  The  next  evening  a 
German  joined  the  party,  when  the  question  arose  what  nation 
they  would  change  to;  the  Englishman  asked  the  German,  what 
countryman  he  would  be  if  he  changed  countries,  and  the  Ger- 
man said  "I  be  an  Englishman.  What  would  you  be  if  you 
changed  ?"  to  which  the  Englishman,  to  be  as  gallant  as  the  other, 
said,  "I  think  I'd  be  a  German,"  and  both  turned  to  Pat  saying, 
"  And  what  would  you  be  if  you  changed  countries,"  "  Faith  and 
I  think  I'd  be  ashamed  of  meself,"  said  the  wit. 


GENIUS  IN  SPEECH.  699 


THE  CHARACTER  OF  A  LAWYER. 

Chief  Justice  Grant,  a  veteran  of  the  Michigan  Supreme  Court, 
spoke  with  forceful  eloquence  at  a  recent  banquet  given  by  the 
Detroit  College  of  Law  in  words  so  impressive  that  they  enforce 
attention : 

"Your  chief  capital,  young  men,  is  in  your  integrity  of  character; 
there  is  no  substitute  for  fairness  and  upright  dealing  with  the 
Courts  and  clients.  Sooner  or  later  the  world  will  find  you  out  and 
learn  of  your  ability  by  your  practice.  You  should  first  find  from 
the  facts  of  your  case  what  your  client's  just  rights  are  and  then 
think  deeply  and  you  will  surely  find,  at  the  bottom  of  it  all,  that 
laws  are  founded  on  common  sense. 

"  I  called  within  a  week  on  a  great  lawyer  of  your  city,  Ashley 
Pond — now  nearly  eighty — whom  I  have  known  for  over  a  half 
century,  and  who  I  believe  never  yet  took  a  position  in  Court  or 
for  his  client,  that  he  did  not  believe  to  be  strictly  true.  He  is  now 
disabled  by  age  and  from  an  accident  and  must  look  out  of  his 
window  and  say  that  it  is  for  the  young  men  to  do  the  work  that  he 
is  no  longer  able  to  perform.  But  he  can  truly  say :  While  in  prac- 
tice, he  was  loyal  to  his  clients,  to  the  Courts  and  to  his  conscience. 

"  His  life  is  a  memory  to  the  Bar  as  a  great  sanded  man! — an  ex- 
ample of  success  through  integrity." 


GENIUS  IN  SPEECH. 

In  a  suit  for  the  loss  of  services  and  society  of  his  wife,  killed  by 
a  street  railway,  the  following  ingenious  and  persuasive  argument 
was  made: 

Defendant's  attorney  offered  in  evidence  the  records  in  a  case 
which  had  been  instituted  by  the  husband  three  years  previous 
which  charged  the  wife  with  infidelity  of  a  serious  nature.  This 
testimony  was  admitted  without  objection.  The  plaintiff  was  per- 
mitted to  testify  that  shortly  after  the  divorce  proceedings  had  been 


700  MODERN  JCRY  TRIALS. 

filed  a  complete  reconciliation  had  been  effected  and  that  he  and 
his  wife  had  lived  together  happily  until  she  met  her  death  in  the 
accident.  Further  facts  appear  in  summing  up  for  plaintiff. 

"  Gentlemen  of  the  Jury,  the  defense  in  this  case  to  my  mind  is 
neither  improper,  unique  or  crafty.  It  is  the  most  natural  defense 
that  could  be  urged  by  an  attorney  whose  duty  it  had  been  to  de- 
fend corporations,  not  that  he  was  engaged  in  an  unrighteous  cause 
or  representing  an  unworthy  client,  but  more  particularly  because 
his  client  could  not  exercise  any  discretion,  and  in  the  preparation 
of  this  case  it  was  impossible  for  him  to  appeal  to  his  client's  heart 
or  its  understanding.  The  legislature  in  providing  for  the  existence 
of  corporations  did  not  endow  them  with  attributes  of  sympathy. 

"No  exorbitant  damages  are  claimed  because  the  defendant  is 
a  corporation,  and  I  hope  you  when  come  to  estimate  the  damages 
to  be  awarded  this  plaintiff,  you  will  not  permit  any  prejudice  which 
you  may  have  against  corporations  to  influence  you  in  awarding 
a  larger  sum  than  you  would  feel  justified  in  finding  had  the  de- 
fendant been  a  private  citizen. 

"  The  defendant  corporation  is  a  creature  of  the  law,  its  right  to 
exist  under  the  law  of  this  State  is  just  as  sacred  as  your  right  to 
enjoy  liberty,  the  pursuit  of  happiness  and  to  hold  property;  more- 
over, it  is  a  great  public  benefactor.  Many  people  have  invested 
their  money  in  this  corporation,  and  it  would  be  manifestly  unjust 
for  you  to  give  my  client  excessive  damages  just  because  the  de- 
fendant is,  of  necessity,  a  powerful  corporation,  and  for  the  same 
reason  you  should  not  minimize  the  plaintiff's  damages  out  of  fear 
of  the  defendant's  power  and  influence  in  this  community. 

"I  make  these  observations,  gentlemen,  not  only  because  they 
are  due  the  defendant  as  a  matter  of  fairness  and  justice,  but  also 
for  the  purpose  of  defining  the  inherent  characteristics  of  the  de- 
fendant or  to  impress  upon  your  minds  that  the  defense  in  this 
case  is  a  product  of  a  heartless  institution,  unmindful  of  the  effect 
of  testimony  disclosing  the  infidelity  and  the  reconciliation  of  plain- 
tiff and  his  wife  as  any  additional  reason  for  you  to  render  sub- 
stantial damages. 

"  The  counsel  for  the  defendant  in  interposing  this  defense  cal- 
culated that  you  would  conclude  that  a  woman  who  had  fallen  by 
the  wayside  had  but  little  if  any  value  either  to  her  husband  or 
society;  that  Providence  had  dealt  kindly  with  him  and  that  the 
street  car  company  in  crushing  out  her  life  really  operated  as  a 
blessing  and  not  a  calamity;  that  the  breaking  of  her  bones,  and 


GENIUS  IN  SPEECH.  701 

the  tearing  of  the  ligaments,  the  snuffing  out  of  that  life,  could  not 
be  considered  by  him  as  a  source  of  damages. 

"  Counsel  urges  that  if  the  plaintiff  was  properly  constituted  he 
would  never  have  become  reconciled ;  that  if  he  had  been  a  strong 
man  he  should  have  cast  her  from  his  bosom  as  being  unworthy 
of  the  name  of  wife;  that  she  had  by  her  own  licentious  act  destroyed 
her  worth  as  a  companion;  that  you  should  accept  this  aspect  in 
mitigation  of  damages,  and  to  express  your  condemnation  of  a 
man  who  forgives  his  wife  knowing  that  she  has  been  faithless  to 
her  marriage  vows. 

"  But,  gentlemen,  strong  men  are  not  the  only  ones  who  are 
entitled  to  recover  damages!  The  very  foundation  of  all  law  is  to 
protect  the  weak  and  the  wronged,  and  the  weakness  of  any  litigant 
is  not  to  be  belittled  on  the  theory  that  he  had  done  some  act  out 
of  the  goodness  of  his  heart  which  is  considered  by  strong  men  the 
act  of  a  weakling. 

"  Did  the  plaintiff  really  sustain  a  loss  by  the  death  of  his  wife 
in  view  of  the  fact  that  she  had  done  wrong  ?  To  determine  this 
all  important  question  you  must  not  be  guided  entirely  by  what  you 
might  or  might  not  do  had  this  woman  been  your  wife.  You  must 
consult  the  plaintiff's  heart  in  order  to  determine  whether  this 
plaintiff  sincerely  believed  that  he  had  an  asset  in  the  services,  com- 
panionship and  society  of  his  wife  at  the  time  of  her  death.  In 
arriving  at  this  let  us  take  an  inventory  of  the  value  which  the  plain- 
tiff placed  on  the  love  he  entertained  for  his  wife. 

"  It  is  fair  to  assume  when  this  plaintiff  first  discovered  that  his 
wife  had  been  unfaithful  his  sense  of  expediency  had  been  de- 
throned and  he  determined  to  be  a  strong  man  and  cast  her  from 
him,  and  he  employed  a  lawyer  to  institute  divorce  proceedings. 
But,  gentlemen,  when  reflection  set  in,  the  venom  in  his  heart  was 
dispelled.  He  recalled  the  first  time  he  had  met  her  and  how  pure 
and  innocent  she  was,  their  walks  through  the  park  and  their  con- 
fidential talks,  and  the  thrill  of  joy  he  experienced  in  planning  the 
future  and  of  the  time  when  she  would  become  his  wife;  how  he 
was  inspired  and  animated  by  lofty  sentiments  as  he  planned  in 
fancy  when  they  should  live  together  in  a  humble  cottage,  and  he 
hesitated,  pondered  and  faltered  when  he  contemplated  the  proba- 
ble consequences  of  a  divorce,  and  he  began  to  consult  the  proba- 
bilities. All  passed  before  his  mind  like  a  panorama,  reluctant 
to  forgive,  hesitating  to  take  the  final  legal  step  that  would  make 
them  strangers  forever.  He  interrogated  his  own  conscience  as 


702  MODERN  JURY  TRIALS. 

to  whether  he  would  be  more  happy  and  content  without  her,  from 
his  own  experiences  could  he  really  be  consoled  by  the  belief  that 
there  was  fidelity  among  women.  Would  it  be  possible  for  him  to 
sit  by  his  fireside  on  a  winter's  night  not  knowing  where  -she  was 
and  who  her  companions  were,  and  be  content?  Would  he  not 
find  himself  while  at  work  or  at  places  of  amusement  asking  him- 
self where  she  was  and  if  she  was  not  sinking  deeper  and  deeper 
in  sin  ? 

"Is  not  this  the  explanation  and  the  influences  that  were  re- 
sponsible for  him  becoming  reconciled  to  his  wife?  Did  he  not 
then  consider  her  love  and  companionship  indispensable  to  his 
happiness  and  that  he  sustained  a  great  loss  in  her  death?  It  is 
not  as  you  would  do,  but  as  it  appeared  to  him  and  to  them  in  that 
humble  home.  It  was  that  which  influenced  brave  old  General 
Sickles  to  take  back  and  forgive  his  wife." 

Jury  returned  a  verdict  of  seven  thousand  dollars. 


LINCOLN'S  FIRST  MURDER  CASE. 

(From  Tact  In  Court.} 

The  simplest  story  of  a  murder  trial  is  always  of  interest,  and 
especially  so  where  the  case  is  conducted  on  either  side  by  men 
with  the  ability  and  genius  that  Abraham  Lincoln  possessed. 

Grayson  was  charged  with  shooting  Lockwood,  at  a  camp  meet- 
ing, on  the  evening  of  August  9,  18 — ,  and  with  running  away 
from  the  scene  of  the  killing,  which  was  witnessed  by  Sovine.  The 
proof  was  so  strong  that  even  with  an  excellent  previous  character, 
Grayson  came  very  near  being  lynched  on  two  occasions  soon  after 
his  indictment  for  murder. 

The  mother  of  the  accused,  after  failing  to  secure  older  counsel, 
finally  engaged  young  Abraham  Lincoln,  as  he  was  then  called, 
and  the  trial  came  on  to  an  early  hearing.  No  objection  was  made 
to  the  jury,  and  no  cross-examination  of  witnesses,  save  the  last 
and  only  important  one,  who  swore  that  he  knew  the  parties,  saw 
the  shot  fired  by  Grayson,  saw  him  run  away,  and  picked  up  the 
deceased,  who  died  instantly. 

The  evidence  of  guilt  and  identity  was  morally  certain.     The 


LINCOLN  S  FIRST  MURDER  CASE.  703 

attendance  was  large,  the  interest  intense.  Grayson's  mother  be- 
gan to  wonder  why  "  Abraham  remained  silent  so  long,  and  why 
he  didn't  do  something." 

The  people  finally  rested.  The  tall  lawyer  (Lincoln)  stood  up 
and  eyed  the  strong  witness  in  silence,  without  books  or  notes,  and 
slowly  began  his  defense  by  these  questions : 

"  And  you  were  with  Lockwood  just  before  and  saw  the  shoot- 
ing?" 

"Yes." 

"  And  stood  very  near  to  them  ?  " 

"  No,  about  twenty  feet  away." 

"  May  it  not  have  been  ten  feet  ?  " 

"  No,  it  was  twenty  feet  or  more" 

"In  the  open  field?" 

"No,  in  the  timber." 

"What  kind  of  timber?" 

"  Beech  timber." 

"  Leaves  on  it  are  rather  thick  in  August  ?  " 

"  Rather." 

"And  you  think  this  pistol  was  the  one  used  ?  " 

"  It  looks  like  it." 

"  You  could  see  defendant  shoot — see  how  the  barrel  hung  and 
all  about  it!" 

"Yes." 

"  How  near  was  this  to  the  meeting  place  ?  " 

"  Three-quarters  of  a  mile  away." 

"  Where  were  the  lights  ?  " 

"  Up  by  the  minister's  stand." 

"  Three-quarters  of  a  mile  away  ?  " 

"  Yes."-  -"  In  answered  ye  twiste." 

"  Did  you  not  see  a  candle  there,  with  Lockwood  or  Grayson  ? " 

"  No !  what  would  we  want  a  candle  for  ?  " 

"  How,  then,  did  you  see  the  shooting  ?  " 

"  By  moonlight ! "  (defiantly) 

"  You  saw  this  shooting  at  ten  at  night — in  beech  timber,  three- 
quarters  of  a  mile  from  the  lights — saw  the  pistol  barrel — saw  the 
man  fire — saw  it  twenty  feet  away — saw  it  all  by  moonlight  ?  Saw 
it  nearly  a  mile  from  the  camp  lights  ? 

"  Yes,  I  told  you  so  before." 

The  interest  was  now  so  intense  that  men  leaned  forward  to  catch 
the  smallest  syllable.  Then  the  lawyer  drew  out  a  blue  covered 


704  MODERN  JURY  TRIALS. 

almanac  from  his  side  coat  pocket — opened  it  slowly — offered  it  in 
evidence — showed  it  to  the  jury  and  the  court — read  from  a  page 
with  careful  deliberation  that  the  moon  on  that  night  was  unseen 
and  only  arose  at  ONE  the  next  morning! 

Following  this  climax,  Mr.  Lincoln  moved  the  arrest  of  the  per- 
jured witness  as  the  real  murderer,  saying:  "Nothing  but  a  motive 
to  clear  himself  could  have  induced  him  to  swear  so  falsely  away 
the  life  of  one  who  never  did  him  harm ! "  With  such  determined 
emphasis  did  Lincoln  present  his  showing  that  the  court  ordered 
Sovine  arrested,  and  under  the  strain  of  excitement  he  broke  down 
and  confessed  to  being  the  one  who  fired  the  fatal  shot  himself, 
but  denied  it  was  intentional. 

This  lesson  to  lawyers,  who  may  not  read  the  whole  story,  is  a 
good  law  lecture.  It  may  be  added  that  Lincoln  first  determined 
his  client  was  not  guilty  and  having  settled  that  point  he  knew  the 
story  was  one  made  up  for  a  purpose,  and  that  purpose  he  was 
bound  to  discover,  and  did  discover  in  his  own  original  manner. 

As  a  reader  of  trials  for  years,  this  one  presents  as  keen  interest 
and  displays  as  much  sagacity  of  counsel  as  any  I  have  found — 
even  Choate  or  Webster  could  have  done  no  better — many  other 
trials  are  more  elaborate  in  detail,  many  contain  passages  of  wit 
and  arguments  of  rare  eloquence — they  are  lessons  from  life  and 
full  of  wisdom — some  of  masterful  logic,  yet  none  are  so  great  or 
were  so  ably  conducted  as  to  overshadow  this  simple  victory  by  a 
young  country  lawyer,  who  lived  to  be  the  leader  of  a  nation  and 
filled  with  honor  the  highest  station  in  the  world. 


BOY  AND  MAN  LAWYERS. 

(From  Art  of  Advocates.) 

Life  has  its  likeness  in  the  seasons  of  the  year  and  even  in  the 
parts  of  a  day.  We  know  there  will  be  life  and  seasons  every  year 
and  hours  in  every  day:  but  not  until  they  come  and  go  and  show 
us  what  results  Avill  come  with  each  can  we  foresee  their  truth. 
They  are  like  boy  dreams  just  ahead:  but  what  they  can  be  counted 
on  to  bring  us  is  a  riddle  deeper  than  the  best  can  solve.  And  it  is 


BOY  AND  MAN  LAWYERS.  705 

better  so.  A  boy's  most  vivid  dream  even  can  never  tell  what  place 
awaits  him  later  on.  Like  Grant,  he  may  be  oftener  at  the  foot 
instead  of  at  the  head  end  of  his  class. 

And  then  the  boy  has  all  to  learn,  has  all  to  meet,  has  competi- 
tion made  to  match  him  every  day,  and  he  must  fight  to  win  and 
fill  each  place  clear  full,  or  lose  it  for  another,  better  suited  to  the 
niche.  This  is  the  very  gist  of  all.  Grant  filled  the  niche.  So, 
also,  Lincoln  did,  and  Meade  and  Edison;  yet  what  a  long,  long 
struggle  each  one  had. 

And  so  with  great  doctors,  like  Agnew,  Douglas  and  Lorenz — 
great  men,  and  not  so  great  when  boys — not  one  of  all  the  list,  so 
far  named,  gave  even  promise  at  the  morning  of  their  lives  just 
what  the  day  would  be  to  either  one.  Not  one  had  ever  dreamed 
as  much,  yet  each  kept  thinking  on,  and  working  on,  and  hoping 
on,  till  hope  seemed  his  guiding  star — until  at  last  he  won. 

And  so  the  springtime  of  our  lives  may  open  like  a  rainy  day 
and  seem  all  cheerless,  hopeless,  dark  and  dismal  in  itself,  yet 
brighten  in  the  summer  with  an  autumn  fruitage  and  a  harvest  of 
good  yield. 

So  he  who  asks,  what  shall  the  harvest  be  of  life,  has  framed  a 
riddle  very  deep  indeed — which  time  alone  can  solve. 

The  one  unerring  test  which  has  applied  to  all  the  great  in- 
ventors, soldiers,  merchants,  lawyers,  teachers,  preachers,  writers 
and  fortune  gainers  with  the  rest,  is  patience  and  a  will  to  work  and 
not  surrender  till  victory  hands  them  its  reward. 

And  when  they  gain  the  goal  and  reap  the  harvest  of  their  lives, 
what  else  ?  Why,  sure  enough,  what  else  ?  What  should  there  be 
but  rest,  and  fame  and  honor,  friendship  and  happiness  as  a  re- 
ward. The  day  ends  with  its  sunset  and  its  rest,  to  wake  again 
to-morrow.  The  seasons  pass  from  each  to  each  all  noiselessly — 
Man  has  his  day,  his  honor,  and  his  rest,  as  seasons  have  their 
passing  to  and  fro.  They  are  not  made  in  vain.  No  more  is  Man. 
The  plan  of  each  is  further  off  than  we  can  see.  The  destiny  is  as 
far  beyond  our  vision,  thought  or  forecast,  as  school-days  are  a 
forecast  of  the  man.  The  future  is  with  one  who  rules  the  world. 


706  MODERN  JURY  TRIALS. 


THE  HAYWOOD  CASE. 

This  highly  sensational  case  was  tried,  after  many  delays,  be- 
fore the  whole  nation,  as  it  were,  and  brought  forth  the  most 
startling  evidence  ever  given  on  a  murder  trial  in  our  country. 
The  details  by  Harry  Orchard  of  his  many  murders,  his  bribery, 
bigamy,  kidnapping,  burglary,  arson,  larceny,  blackmail,  dvnam- 
ical  and  fiendish  designs  are  best  described  in  the  elaborate  and 
masterly  speech  of  Clarence  S.  Darrow,  one  of  the  greatest  crim- 
inal lawyers  in  any  country.  Mr.  Darrow  excels  as  a  terse  and 
rapid  cross-examiner,  in  this,  that  his  points  go  home  to  a  jury 
with  power  and  effective  influence.  He  is  still  in  his  prime,  about 
six  feet  tall,  strong,  robust  and  vigorous,  and  although  nearly  thirty 
years  in  jury  trial  practice,  which  would  wear  out  one  of  less 
physical  and  mental  endurance,  he  retains  all  of  his  fire  and  elo- 
quence. He  has  tried  cases  in  Ohio,  Pennsylvania,  Wisconsin, 
Minnesota,  Illinois  and  on  the  Pacific  Coast.  He  was  the  counsel 
for  C.  &  N.  W.  Ry.,  and  has  a  practice  of  large  proportions.  He 
was  Debs'  attorney  in  the  Pullman  Strike  cases,  and  attorney  for 
the  city  of  Chicago  in  the  traction  cases  and  for  the  mines  in  the 
Anthracite  Coal  Commission  in  Philadelphia. 

On  December  30,  1905,  at  about  seven  o'clock  in  the  evening, 
Frank  Steunenberg  was  killed  in  Caldwell,  Idaho,  by  the  explosion 
of  a  dynamite  bomb.  Steunenberg  had  been  the  Governor  of 
Idaho,  and  in  1899  had  called  out  the  militia  in  the  northern  part 
of  the  state  on  account  of  the  strike  which  was  carried  on  by  the 
Western  Federation  of  Miners. 

Governor  Steunenberg  had  been  a  private  citizen  for  a  num- 
ber of  years,  and  was  a  banker  in  Caldwell,  Idaho — a  town  of 
some  three  or  four  thousand  people — which  was  his  native  home. 
Immediately  after  his  death  it  was  found  that  a  dynamite  bomb 
had  been  placed  near  his  gate  and  a  fish  line  attached  to  the  gate 
and  carried  to  the  bomb  in  such  a  way  as  to  explode  the  bomb  by 
the  opening  of  the  gate.  Governor  Steunenberg  on  returning  to 
his  home,  shortly  after  dark,  opened  the  gate  and  was  almost 
instantly  killed.  His  death  caused  the  greatest  excitement  in 
Caldwell,  in  Idaho,  and  in  fact  throughout  the  country.  Orchard 
had  been  in  Caldwell  at  two  different  times  in  the  last  few  weeks, 
and  on  this  occasion  had  been  staying  at  a  hotel  for  upwards  of 


THE  HAYWOOD  CASE.  707 

a  week.  He  seemed  to  have  no  business  in  the  town,  and  some 
suspicious  actions  attracted  attention  to  him  and  caused  his  arrest. 

The  "confession"  made  by  Orchard  was  kept  secret  for  a 
number  of  weeks  and  a  secret  requisition  was  issued  by  the  Gov- 
ernor of  Idaho  upon  the  Governor  of  Colorado.  This  was  se- 
cretly honored  and  an  order  made  by  the  Governor  to  turn  the 
prisoners  over  to  the  authorities  of  Idaho.  The  prisoners  were 
arrested  about  ten  o'clock  on  a  Saturday  night,  and  denied  access 
to  or  consultation  with  their  friends  or  counsel. 

The  case  of  Haywood,  under  the  indictment  for  murder,  was 
placed  on  the  calendar  first  and  came  on  for  trial  on  the  9th  day 
of  May,  1P07,  and  a  verdict  was  returned  in  the  last  days  of  July. 
After  twenty  hours  of  deliberation  a  verdict  of  "  Not  Guilty  "  was 
reached. 

THE   PLEA   TO   THE   JURY. 

Gentlemen,  I  need  not  tell  you  how  important  .this  case  is.  How 
important  to  the  man  on  trial  and  to  these  who  still  must  be  placed 
where  he  is  to-day.  How  important  to  his  family  and  his  friends. 
How  important  to  society.  How  important  to  a  great  movement 
which  represents  the  hopes  and  the  wishes  and  the  aspirations  of 
all  men  who  labor  to  sustain  their  daily  life.  You  know  it!  You 
could  not  have  sat  here  day  after  day  so  long  as  you  have  witnout 
understanding  it,  and  grasping  it,  and  excusing  us  if  in  our  haste 
and  zeal  we  seemed  to  say  things  we  should  not  have  said,  and  for- 
got things  we  should  have  spoken  of  to  you. 

And,  gentlemen,  we  are  here  as  aliens  to  you.  Our  client  and 
the  men  who  are  with  him  down  here  in  this  jail  have  been  brought 
fifteen  hundred  miles  to  be  tried  by  a  practically  foreign,  alien 
jury — a  jury  unfamiliar  with  their  method  of  thought,  a  jury  un- 
familiar with  their  methods  of  life,  a  jury  who  has  not  viewed  life 
from  the  standpoints  of  industry  as  these  men  have  viewed  it; 
I  am  here,  two  thousand  miles  from  home,  unacquainted  with 
you,  with  your  life,  with  your  methods  of  reasoning — all  of  us  are 
brought  here  in  an  alien  country,  before  people,  if  not  unfriendly, 
whom  at  least  we  do  not  know,  and  we  are  here  met  by  the  ablest 
counsel  that  the  State  of  Idaho  ever  produced — the  peer  of  any 
counsel  anywhere;  and,  more  than  that,  we  are  here  in  the  home 
of  the  man  who  was  killed  in  the  most  ruthless,  cowardly,  brutal 
way  that  any  man  could  meet  his  death. 

•f*  3JC  *(»  *p  *|»  3p  5jC 


70S  MODERN  JURY  TRIALS. 

Gentlemen  of  the  jury,  a)ie  thing  more:  William  D.  Hayu'ood  is 
charged  with  murder.  Pie  is  charged  with  having  killed  ex-Gov- 
ernor Steunenberg.  He  was  not  lure.  He  was  fifteen  hundred  or 
a  thousand  miles  away,  and  he  had  not  been  here  for  years.  There 
might  be  some  member  of  this  jury  who  would  hesitate  to  take  away 
the  life  of  a  human  being  upon  the  rotten  testimony  that  has  been 
given  to  this  jury  to  convict  a  fellow  citizen.  There  might  be  some 
who  still  hold  in  their  minds  a  lurking  suspicion  that  this  defend- 
ant had  to  do  with  this  horrible  murder.  You  might  say,  we  will 
compromise;  we  cannot  take  his  life  upon  Orchard's  word,  but  we 
will  send  him  to  the  penitentiary;  we  will  find  him  guilty  of  man- 
slaughter; we  will  find  him  guilty  of  murder  in  the  second  degree 
instead  of  the  first. 

Take  Orchard.  Take  his  own  story.  He  was  acquainted  with 
Moyer.  He  was  acquainted  with  Hay  wood.  He  was  acquainted 
with  Pettibone.  He  had  worked  himself  into  the  confidence  of 
Pettibone  at  least.  He  had  been  invited  to  his  house.  He  had 
met  his  wife.  He  had  eaten  at  his  table.  He  had  slept  in  his  bed. 
He  was  his  friend.  Gentlemen  of  the  jury,  I  ask  you,  who  watched 
him,  who  saw  this  monster  on  the  witness  stand,  I  ask  you  whether 
there  was  the  least  look  of  pity,  the  least  sign  of  regret,  the  least 
feeling  of  sorrow  when  this  man  sought  to  hand  over  his  friends 
to  the  executioner?  Did  he  look  any  different?  Was  there  any 
different  gleam  in  his  eye  or  different  cast  in  his  countenance  or 
a  single  flutter  of  his  iron  nerve  that  was  not  there  when  he  met 
a  reeling,  staggering,  drunken  man  and  shot  him  three  times 
before  he  could  raise  his  hand  ? 

If  there  is  any  pity  in  his  soul,  if  there  is  any  of  the  heavenly 
mercy,  if  there  is  any  of  the  Christlike  forgiveness  it  hasn't  gone 
out  to  Pettibone  at  whose  table  he  had  eaten.  But  let  us  take  a 
case  that  is  plainer  than  that,  gentlemen  of  the  jury'.  You  are  not 
emotional  men.  Here  are  twelve  men  who  are  mainly  farmers; 
you  haven't  read  fairy  stories.  You  work  with  your  hands.  Most 
of  you,  perhaps,  never  heard  a  fairy  story  until  you  heard  Or- 
chard's. I  am  not  going  to  appeal  to  you  on  any  fantastic  basis. 
I  am  going  to  put  a  proposition  to  twelve  hard-handed  and  hard- 
headed  men  of  Idaho,  and  I  want  you  to  say,  gentlemen  of  the 
jury,  whether  religion  has  changed  the  nature  of  this  wretch,  and 
I  should  expect  if  any  of  you  were  interested  in  religion  you  would 
say  that  he  had  not  got  it.  You  would  have  to  say  it  to  keep  from 
giving  up  your  own. 


THE  HAYWOOD  CASE.  709 

Let  us  see  how  it  appeals  to  twelve  men.  When  you  are  through 
with  this  case  and  have  gone  back  to  your  homes  and  think  of 
it,  as  you  will,  over  and  over  and  over  again  (for  it  is  a  historical 
case),  pictures  will  come  back  to  you,  of  this  lawyer,  that  lawyer, 
of  this  court,  of  this  witness,  of  this  defendant — you  will  see  them 
while  you  are  waking,  you  will  see  them  while  you  are  sleeping, 
YOU  will  dream  of  it  and  you  will  think  of  it,  and  you  will  wonder 
whether  your  poor,  weak,  human  judgment  erred,  or  whether 
you  did  right,  or  whether,  after  all,  you  might  not  have  done 
otherwise.  Pictures  will  come  of  the  figures  in  this  case,  and 
amongst  the  rest  Harry  Orchard's.  It  may  not  come  to  all  of  you 
alike.  It  may  not  come  to  me  as  it  comes  to  others.  One  of  you 
may  picture  Harry  Orchard  as  he  is  meeting  this  drunken  man 
reeling  out  of  the  saloon  and  shooting  him  to  death  in  the  dark- 
ness and  the  night.  Another  man  may  picture  him  as  he  places 
the  fagot  under  Nelville's  saloon  and  runs  away.  Another  may 
picture  him  as  he  plants  a  box  of  powder  under  the  station  and 
hurries  off  in  the  darkness  to  save  his  life,  while  he  sends  fourteen 
souls  unshriven  into  the  great  beyond.  Another  may  picture  him 
placing  a  bomb  at  Steunenberg's  gate. 

Hawley  will  picture  him  as  a  cherubim  with  wings  growing 
out  from  his  shoulders  and  with  a  halo  just  above  his  head  and 
singing  songs,  with  a  lawyer  on  one  side  of  him  and  Detective 
McPartland  on  the  other.  I  don't  know  yet  how  Borah  will 
picture  him,  but  everybody  will  picture  him  according  to  how 
they  see  him.  My  picture  is  none  of  these — none  of  these.  I  see 
what  to  me  is  the  crowning  act  of  infamy  in  Harry  Orchard's 
life,  an  act  which  throws  into  darkness  every  other  deed  that  he 
ever  committed  as  long  as  he  has  lived,  and  he  didn't  do  this 
until  he  had  got  Christianity  or  McPartlandism,  whatever  that 
is.  Until  he  had  confessed  and  been  forgiven  by  Father  Mc- 
Partland, he  had  some  spark  of  manhood  still  in  his  breast.  There 
have  been  other  criminals  in  this  world,  great  criminals.  Our 
penitentiaries  are  full  of  criminals  whose  names  are  unknown. 
Men  have  mounted  the  scaffold,  they  have  fallen  through  the  trap- 
door, they  have  been  strangled  to  death,  their  bodies  have  been 
eaten  up  with  quicklime  inside  of  the  prison  walls,  and  they  pro- 
tected their  names.  Their  name  was  the  only  thing  sacred  that 
was  left  to  the  criminal.  Look  at  this  fellow,  you  twelve  men,  and 
tell  me  what  you  think  of  him,  and  whether  you  will  take  away  a 
life  on  account  of  him.  Who  was  he? 


710  UoDERX  JURY  TRIALS. 

He  left  Ontario  a  young  man.  His  record  was  bad.  It  was  not 
infamously  bad.  His  name  was  not  Harry  Orchard;  his  name 
was  Albert  Horseley  when  he  left.  He  went  to  Detroit  with  an- 
other man's  wife.  \Vhen  he  reached  Detroit  his  name  was  Harry 
Orchard.  He  lied,  he  stole,  he  burglarized,  he  committed  arson 
and  became  a  murderer  and  his  name  was  Harry  Orchard.  His 
best  friend  never  knew  any  name  but  that.  The  name  of  Horse- 
ley  was  buried  deep  in  this  criminal's  heart  and  he  protected  it 
as  the  one  spark  of  goodness  that  bound  him  back  to  his  child- 
hood days.  He  was  not  totally  depraved.  He  protected  his  name. 
He  had  gone  away  from  Ontario.  He  had  taken  the  name  of 
Orchard  and  had  covered  it  with  infamy  and  slime,  but  he  had 
left  the  name  of  Horseley  comparatively  pure  in  the  little  On- 
tario town.  Now,  gentlemen,  this  is  the  picture  of  Ham"  Orchard 
that  comes  to  me.  You  may  picture  him  a  saint  if  you  want  to 
or  if  you  can,  and  if  you  can,  you  may  take  away  the  life  of  a 
fellow  being  on  his  testimony,  and  I  will  say  to  you  as  the  judge 
does  to  the  condemned  murderer,  "  May  God  have  mercy  on  your 
souls." 

You  may  picture  him  as  you  think  he  should  be  pictured.  But 
here  is  this  picture:  here  is  a  little  rural  town  off  in  Canada;  here 
is  a  country  graveyard  with  a  white  fence  around  it  and  a  church 
by  its  side.  Here  are  two-fashioned  Quaker  people  who  read 
their  Bible  and  who  love  their  God  and  who  live,  in  the  sight  and 
the  fear  of  their  God,  a  quiet,  peaceful,  honest  life,  and  who  reared 
their  family  hoping  they  would  follow  in  the  footsteps  of  that 
Quaker  couple.  They  died  and  are  buried  in  that  old  graveyard 
in  the  country  town;  the  names  on  the  marble  headstone  are 
never  known  beyond  the  limits  of  the  little  town  where  they  lived 
and  where  they  died;  but  they  lived  an  honest  life,  an  upright, 
God-fearing  life,  and  they  laid  down  their  burden  when  it  was 
done  and  sleep  the  peaceful  sleep  of  the  just,  and  their  names  are 
respected  and  their  names  were  honored.  They  bore  two  sons 
and  six  daughters.  One  son  went  out  into  the  world.  He  married. 
He  had  a  child.  Temptation  overcame  him.  He  left  his  wife  to 
toil  for  herself.  He  left  his  child,  a  baby  girl,  unprotected  and 
unaided  to  grow  up  alone  without  a  dollar,  or  a  father's  love; 
and  he  went  out  into  the  world  and  covered  himself  with  mud 
and  dirt  and  crime  until  he  was  revolting  in  the  sight  of  God  and 
man.  The  brother  stayed  at  home,  a  quiet,  peaceful,  honest  man, 
having  children  to  bear  the  Horseley  name  to  generations  yet  un- 


THE  HAY  WOOD  CASE.  711 


. 


born.  The  sisters  married.  They  had  children  in  whose  veins 
flowed  the  Horseley  blood.  They  are  quiet,  peaceful,  honest 
folks.  The  little  girl,  growing  up  neglected,  uncared  for,  has  been 
struggling  alone  until  she  is  nine  years  old.  The  Horseley  name 
is  all  she  has.  The  honor  of  the  grandfather  and  the  grandmother 
sleeping  in  their  Quaker  graves,  that  is  all  she  has.  She  has 
nothing  from  the  father  who  deserted  her. 

Suddenly  there  comes  back  a  story  that  the  monumental  crim- 
inal of  the  ages  has  revealed  the  name  of  Albert  Horseley;  that 
this  man,  who  went  out  from  this  quiet  town,  covered  himself 
with  crime  and  with  infamy,  so  that  every  neighbor  who  goes 
through  that  quiet  yard  can  point  to  the  grave  of  this  old  Quaker 
couple  and  say,  "There  lies  the  father  and  the  mother  of  the 
greatest  criminal  of  modern  times,"  and  the  brother  and  the 
sisters,  living  and  toiling  as  best  they  can,  with  the  burden  of  the 
world  upon  them,  the  world  now  will  point  to  them,  "There  is 
the  brother,  there  are  the  sisters,  these  are  the  nieces  and  these 
are  the  nephews  of  that  monster  who  has  challenged  the  civilized 
world  with  his  iniquities  and  his  crimes,"  and  the  deserted  wife, 
and  above  all,  the  little  girl,  flesh  of  his  flesh  and  bone  of  his  bone. 

Gentlemen,  I  want  to  know  what  any  one  of  you  think  of  this 
miserable  wretch  who  blighted  the  life  of  this  deserted  girl  to 
save  his  miserable  neck.  Am  I  still  crazy  ?  Are  the  men  of  Idaho 
different  from  other  men  ?  Does  not  the  same  sort  of  blood  flow 
through  your  veins  as  flows  through  the  veins  of  all  men  who  ever 
lived  ?  Can  anybody  look  upon  this  act  with  anything  but  horror, 
and  yet  Hawley  says,  every  human  being  is  to  be  condemned  who 
has  dared  to  run  counter  to  his  perjured  word.  Think  of  that 
girl!  Gentlemen,  every  act  of  this  villain's  life  pales  into  insig- 
nificance compared  to  the  crime  committed  against  that  child. 
The  blowing  up  of  the  Independence  depot  was  a  sacrament  com- 
pared with  running  that  poisoned  dagger  into  the  heart  of  a  nine 
year  old  babe,  a  dagger  that  could  not  kill,  gentlemen.  If  it  could 
kill,  well  and  good.  But  this  was  a  dagger  that  would  fester  and 
corrode,  and  leave  its  pain  and  sting  and  leave  the  fingers  of  the 
world  pointed  at  her  and  the  voice  of  the  world  raised  against  her 
and  her  offspring  as  long  as  they  remain  upon  the  earth. 

Gentlemen,  am  I  wrong  ?  Is  there  any  man  that  can  ever 
think  of  Harry  Orchard — any  man  but  Hawley — is  there  any 
sane  man,  I  will  say,  who  can  ever  think  of  Harry  Orchard  ex- 
cept in  loathing  and  disgust?  You  have  seen  him  here.  You 


712  MODERN  JURY  TRIALS. 

have  heard  his  story.  You  have  seen  him  sleek  and  fat  and  well 
fed,  facing  this  jury  day  by  day  asking  for  this  man's  blood.  Do 
you  ever  want  to  see  him  again  ?  Do  you  ever  want  to  hear  his 
name  again?  In  the  future  when  you  are  trying  to  find -the  most 
infamous  word  that  the  English  language  has  given  us  can  you 
think  of  anything  but  Orchard?  Do  you  want  to  read  a  paper 
again  with  his  name  in  it?  And  yet,  gentlemen,  upon  the  testi- 
mony of  this  brute,  this  man  who  would  assassinate  his  own  nine 
year  old  girl  with  a  dagger  a  thousand  times  more  malicious  and 
deadly  than  one  that  kills,  upon  his  testimony,  you  are  asked  to 
get  rid  of  Bill  Haywood.  For  what  ?  Does  anybody  else  attack 
his  name  ?  Anybody  else  swear  anything  against  him  ?  Has  any 
other  voice  been  raised  to  accuse  him  ?  Oh,  no.  You  are  asked 
to  take  his  life  because  down  in  Colorado  he  has  been  against  the 
Mine  Owners'  Association,  and  because  he  has  been  organizing 
the  weak,  the  poor,  the  toilers — has  been  welding  together  in  one 
great  brotherhood  those  men — has  been  calling  them  to  fight  un- 
der one  banner  for  a  common  cause;  and  for  that  reason  he  has 
raised  up  against  him  the  power  of  this  body  of  men,  and  you  are 
asked  to  kill  Haywood. 

To  kill  him,  gentlemen!  I  want  to  speak  to  you  plainly.  Mr. 
Havwood  is  not  my  greatest  concern.  Other  men  have  died  be- 
fore him.  Other  men  have  been  martyrs  to  a  holy  cause  since  the 
world  began.  \Yherever  men  have  looked  upward  and  onward, 
forgotten  their  selfishness,  struggled  for  humanity,  worked  for 
the  poor  and  the  weak,  they  have  been  sacrificed.  They  have 
been  sacrificed  in  the  prison,  on  the  scaffold,  in  the  flame.  They 
have  met  their  death,  and  he  can  meet  his,  if  you  twelve  men  say 
he  must.  But,  gentlemen,  you  short- sighted  men  of  the  prosecu- 
tion, you  men  of  the  Mine  Owners'  Association,  you  people  who 
would  cure  hatred  with  hate,  you  who  think  you  can  crush  out 
the  feelings  and  the  hopes  and  the  aspirations  of  men  by  tying  a 
noose  around  his  neck,  you  who  are  seeking  to  kill  him,  not  be- 
cause it  is  Haywood,  but  because  he  represents  a  class,  don't 
be  so  blind,  don't  be  so  foolish  as  to  believe  you  can  strangle  the 
Western  Federation  of  Miners  when  you  tie  a  rope  around  his 
neck.  Don't  be  so  blind  in  your  madness  as  to  believe  that  when 
you  make  three  fresh  new  graves  you  will  kill  the  labor  movement 
of  the  world.  I  want  to  say  to  you  gentlemen.  Bill  Havwood 
can't  die  unless  you  kill  him.  You  must  tie  the  rope.  You  twelve 
men  of  Idaho,  the  burden  will  be  on  vou.  If  at  the  behest  of  this 


THE  HAY  WOOD  CASE.  713 

mob  you  should  kill  Bill  Haywood,  he  is  mortal,  he  will  die,  but 
1  want  to  say  that  a  million  men  will  grasp  the  banner  of  labor 
at  the  open  grave  where  Haywood  lays  it  down,  and  in  spite  of 
prisons  or  scaffolds  or  fire,  in  spite  of  prosecution  or  jury  or  courts, 
these  men  of  willing  hands  will  carry  it  on  to  victory  in  the  end. 
Jury  said,  "  Not  Guilty." 


SELF-DEFENSE. 

THE    OPENING    AND     CLOSE      OF    AX     ELOQUENT     PLEA      BY    JAMES 

HAMILTON    LEWIS. 

Note:  Dora  McDonald  was  indicted  for  murder,  for  killing 
Webster  Guerin,  a  young  artist  who  had  his  studio  in  the  Omaha 
Building  in  Chicago.  Guerin  was  unmarried,  and  living  with 
his  mother  and  brothers  at  their  family  home.  Mrs.  McDonald 
was  a  Jewess  who  had  divorced  her  husband,  Samuel  Barclay, 
at  the  instigation  of  McDonald,  who  was  a  prominent  Catholic, 
who  divorced  his  wife  and  mother  of  his  children  in  order  that  the 
marriage  with  Dora  Feldman  Barclay  could  be  made.  It  was 
charged  that  he  paid  all  expenses  of  both  divorces.  McDonald 
was  an  old  man,  potent  in  the  politics  of  Illinois  and  particularly 
Chicago;  dictator  in  the  naming  of  political  officers  and  a  mil- 
lionaire. 

Mrs.  McDonald  had  known  Guerin  when  a  boy  of  sixteen, 
and  it  was  charged  that  by  her  efforts  he  became  the  subject  of 
her  affection,  kept  up  during  his  manhood;  that  upon  the  eve  of 
his  approaching  marriage  to  another,  she,  in  jealousy  and  re- 
venge, went  to  his  studio  and  shot  him  to  death,  after  having 
threatened  a  number  of  times  to  do  so.  The  evidence  disclosed 
that  through  broken  glass  in  the  studio  door  Mrs.  McDonald 
was  standing  with  pistol  in  her  hand  and  screaming,  while  Guerin 
lay  upon  the  floor  dead. 

The  defense  led  the  community  and  the  state  to  assume  that 
insanity  would  be  tendered  as  an  excuse  for  the  act,  but  as  the  case 
progressed,  the  chief  counsel,  Col.  Jas.  Hamilton  Lewis  began  to 
develop  unexpectedly  the  defense  of  self-defense,  insisting  that 
the  deceased  had  been  conducting  a  course  of  blackmail  and  ex- 
tortion upon  the  defendant,  and  that  she  finally  had  broken  down 
and  confessed  all  to  her  husband. 

Gentlemen  of  the  Jury: 

This  case  has  truly  been  a  trying  one.  During  these  weeks 
that  you  have  sat  here  you  have  had  occasion  to  observe  the  pe- 
culiar course  that  criminal  trials  take.  In  all  contests,  gentle- 
714 


SELF-DEFENSE.  715 

men  of  the  jury,  whether  it  is  one  like  this,  or  one,  perchance, 
where  there  may  be  nothing  more  at  stake  than  the  question  of 
dollars  and  cents,  or  a  piece  of  property,  the  contestants  each  go 
to  extremes.  One  will  go  beyond  what  the  necessities  require 
and  the  other  will  meet  that  by  going  to  the  other  extreme,  to 
what  probably  the  necessity  did  not  call  for.  It  is  because  of 
that,  gentlemen  of  the  jury,  you  are  designated  to  hear  both  sides 
and  judge  between  these  extremes  of  that  which  is  about  right — 
at  the  center.  .  .  . 

A  woman  is  brought  to  the  bar  of  justice  charged  with  murder. 
Murder — the  willful,  deliberate  and  malicious  taking  of  the  life 
of  a  fellow  being  without  excuse  or  justification.  So  heinous  has 
been  the  very  suggestion  of  the  word  "murder"  that  we  quail 
from  its  very  mention.  It  shakes  the  very  sensibilities  of  men  to 
comprehend  the  word  "murder."  We  know  that  in  the  be- 
ginning of  life  when  the  "mark  of  Cain"  fell  upon  his  brother, 
the  first  murder  was  committed,  and  thus  from  that  time  to  this, 
murderers  have  been  marked  by  the  "brand  of  Cain."  What  is 
such  thing  ?  What  is  murder  ? 

Does  a  person  from  a  quiet  life  that  has  never  been  marked 
with  an  unkind  act  to  a  human  being,  from  a  gentle  life  evidenced 
by  every  little  act  of  charity,  from  a  peaceful  life  never  wronging 
r.ny  human  being,  at  one  leap  become  the  bloody-jawed  tigress 
of  the  jungle  and  leap  at  one  bound  to  the  pinnacle  of  crime,  the 
destruction  of  fellow  beings  ?  We  have  pictured  to  us  a  creature 
vrithout  fear  of  God  or  love  of  man:  we  have  had  pictured  those 
who  hurt  the  innocent  and  persecute  the  defenseless — one  who 
could  maltreat  the  children  of  neighbors  and  defile  the  dead. 
This  defendant  has  been  pictured  to  you  at  the  apex  of  this  hor- 
rible graduation  in  the  school  of  crime; — from  a  seductive  adul- 
teress to  the  malicious  murderess.  Are  there  any  things  before 
you  to  indicate  that  she  could  be  such  a  one  as  could  be  guilty 
of  the  heinous  offense  charged  in  this  indictment  against  her? 
— Murder ! — 

After  an  exhaustive  argument  of  115  pages  on  the  facts  which 
space  prevents  repeating,  counsel  said: 

He  wanted  to  leave  the  impression  and  the  evidences  that  she 
had  committed  suicide.  He  knew  that  she  had  often  threatened 
so  to  do.  She  had  tried  it  in  California  herself  after  Guerin  had 
continually  persecuted  her.  You  remember  she  said  to  poor  lit- 
tle Mrs.  Belmont  there  in  the  cell,  "  I  have  been  hounded,  hounded 


71G  MODERN  JURY  TRIALS. 

and  hounded,"  and  as  she  had  said  to  Mary  and  to  Mr.  Mc- 
Donald, "  I  have  been  hounded  and  hounded,"  and  as  she  piteously 
cried  to  Mrs.  Belmont,  "  I  have  never  had  a  chance  in  life,  I  have 
never  had  a  chance;  the  only  friend  I  ever  had  in  the  world  was 
my  father  and  he  passed  from  me  before  I  knew  him,  while  I 
was  very  young."  This  poor,  unfortunate  woman  driven  to  des- 
peration was  near  death.  There  was  a  woman  in  the  matron  of 
the  cell  and  to  the  bosom  of  a  woman  a  woman's  wails  went  out — 
"I  am  hounded,  I  am  hounded;  I  have  never  had  a  chance  in 
my  life."  This  poor,  hapless  woman  there  in  that  room  with  this 
man  Guerin,  he  either  intended  to  take  her  life  and  leave  the  im- 
pression that  she  had  committed  suicide  to  free  herself;  or,  gentle- 
men,— I  have  the  other  idea  which  it  is  my  duty  to  advance  to 
you, — that  perchance  he  did  not  intend  to  kill,  but  she  must 
take  back  what  she  told  Mike  McDonald.  She  must  go  back 
and  tell  him  it  was  not  so.  He  takes  this  pistol  in  his  right  hand 
with  his  left  hand  on  her  throat  and  turned  the  pistol  in  her  face, 
choking  her  in  the  meantime,  cursing  her  and  threatening  her 
if  she  did  not  retract — and  in  the  struggle  she,  as  she  told  the 
officer  in  her  delirium,  "saw  something  shiny,"  and  I  have  r.o 
doubt  her  hand  went  forward,  grabbing,  snatching,  pushing 
and  in  frantic  fright  forced  the  pistol  around  against  his  body, 
and  in  that  manner  the  shooting  must  have  occurred. 

Now  let  us  understand  each  other,  gentlemen;  I  will  tell  you 
the  way  I  think  the  killing  occurred.  She  had  confessed  every- 
thing to  Mike  McDonald, — to  her  husband — the  night  before. 
It  was  by  his  orders  that  she  visited  Guerin  on  this  morning. 
She  told  Guerin  of  her  confession  to  her  husband.  That  she  had 
told  everything!  Guerin  became  frantic  with  anger!  He  de- 
nounced her.  In  a  temper  Webster  Guerin  set  upon  her.  He 
seized  her — threw  her  about,  struck  her  on  the  head  knocking 
her  into  the  chair,  from  which  she  had  attempted  to  arise.  He 
choked  her.  She  sought  to  cry  out.  He  took  his  revolver  from 
his  desk  where  it  was  kept, — as  she  was  "sitting  by  the  drawer 
of  the  desk."  I  am  of  the  opinion  that  he  did  not  at  that  moment 
intend  to  kill  her,  he  probably  meant  to  frighten  her  to  promise 
to  retract  and  stay  the  approach  of  McDonald,  but  she  struggled 
with  him.  She  was  strangling.  With  his  left  hand  clutching  her 
throat  he  thrust  the  revolver  in  her  face.  She  with  the  sudden- 
ness of  life's  desperate  effort  to  save  itself  shoved  with  both  hands 
the  weapon  around  and  back  towards  and  against  his  breast, 


SELF-DEFENSE.  717 

until  his  finger  pulled  the  trigger  through  the  tension  of  the  grip 
and  sent  a  bullet  into  his  own  bosom:  Heaven's  rescue  of  the 
woman; — Its  designed  justice  against  the  man. 

********* 

What  man  of  you  would  put  your  hand  on  a  woman's  throat  to 
choke  her  and  beat  her  in  the  face,  after  robbing  her  of  her  jew- 
elry, and  her  money, — her  honor.  Locking  her  in  a  room  far 
from  where  cries  could  be  heard,  and  attempt  to  murder  her  with 
a  muffled  pistol!  Oh,  I  apologize  to  you  for  saying,  put  yourself 
in  his  place.  Still,  I  say,  how  can  we  measure  the  exact  limit  of 
action  the  heart  should  dictate,  when  life  is  threatened  and  death 
is  upon  us  ?  What  would  we  have  done  in  such  awful  emergency  ? 
How  would  we  have  acted,  how  would  we  have  defended,  would 
we  have  shot  ?  Or  would  we  have  paused  to  ask  ourselves,  how 
far  will  the  law  allow  me  to  go  before  I  am  murdered  ? 

It  is  easy  enough  in  the  cool  of  deliberation  to  calculate  what 
a  man  might  do  or  what  he  should  do,  but  in  the  midst  of  severe 
conflict,  involving  the  most  awful  consequences  turn  either  way 
we  might,  who  shall  say  what  shall  be  the  exact  method  of  pro- 
cedure and  the  exact  manner  of  performance?  Only  those  who 
have  been  in  such  emergency  with  its  impending  dangers  hang- 
ing over  them  can  appreciate  the  impossibility  and  the  injustice 
of  those  who  in  the  freedom  of  contemplation  aided  by  all  that 
can  assist  in  quiet  conclusion,  demanding  that  such  standard 
should  be  applied  to  that  other  state  of  circumstances  where  no 
one  save  those  who  have  been  tried  can  speak,  much  less  should 
be  allowed  to  judge. 

We  all  remember  the  philosophy  spoken  by  Richelieu,  the  great 
Cardinal,  in  the  deep  of  the  night,  surrounded  by  foes  without 
and  traitors  within,  menaced  by  death  and  threatened  by  dis- 
grace and  dishonor.  Any  move  calculated  to  be  his  destruction; 
and  then  at  such  time  confronted  with  the  tendered  reasoning 
that  it  was  his  duty  to  allow  the  calm  of  conscience  to  direct  the 
dictates  of  his  mind  and  the  course  of  his  conduct.  It  is  in  reply 
to  this  astounding  and  inhuman  demand  that  he  responds: 

"  O !  ye,  whose  hour-glass  shifts  its  tranquil  sands 
In  the  unvex'd  silence  of  a  student's  cell; 
Ye,  whose  untempted  hearts  have  never  toss'd 
Upon  the  dark  and  stormy  tides  where  life 
Gives  battle  to  the  elements, — and  man 


718  MODERN  JURY  TRIAL  j. 

Wrestles  with  man  for  some  slight  plank,  whose  weight 
Will  bear  but  one — while  round  the  desperate  wretch 
The  hungry  billows  roar — and  the  fierce  Fate, 
Like  some  huge  monster,  dim-seen  through  the  surf, 
Waits  him  who  drops! — Ye  safe  and  formal  men, 
Who  write  the  deeds,  and  with  unfeverish  hand 
Weigh  in  nice  scales  the  struggles  of  the  trapped 
And  the  cries  of  the  stricken, 
Ye  cannot  know  what  ye  liave  never  triedl" 

There  may  be  tilings  in  this  case  which  do  not  appear  good  to 
you  so  far  as  the  proprieties  of  life  are  considered,  but  you  are  not 
called  to  pass  judgment  upon  the  imperfections  of  this  miserable 
woman.  You  are  assembled  to  say  how  far  her  transgressions 
may  be  forgiven  her  and  new  life  and  hope  held  out  to  her. 

Counsel  savs  this  woman  should  be  punished.  Punished  ? 
Can  any  punishment  surpass  that  which  already  has  fallen  upon 
this  homeless,  hopeless,  helpless  woman  ?  The  doors  of  to-morrow 
are  shut  upon  her.  The  hand  of  friendship  has  been  withdrawn. 
The  faces  she  loved  have  been  averted.  The  friends  departed. 
She  is  destined  as  one  who  is  a  plague  to  walk  forever  alone, 
alone  forever,  and  forever.  To  society  an  outcast.  To  love  a 
stranger.  To  the  world  a  woman  suspected.  Where  in  death 
or  imprisonment  can  there  be  such  punishment  as  will  be  hers 
with  the  world  turned  against  her  and  her  child — the  blood  of 
her  heart — scorned  as  a  son  of  a  woman  who  has  been  tried  for 
murder!  WThich  one  of  us  would  care  to  have  a  sister  or  a  woman 
dear  to  us  go  through  the  life  she  will  face  even  after  freedom  ? 
Her  days  are  darkness; — her  nights  are  death!  For  her  there  is 
no  freedom — all  is  punishment — all  is  imprisonment. 

$$£$££$4*41 

The  great  Persian  philosopher,  Sadii,  tells  of  a  man  and  woman 
who  started  out  together.  The  days  of  the  man  were  lighted  with 
sunshine,  his  nights  -by  stars.  He  reached  the  end  of  his  journey 
at  the  gates  of  God  and  demanded  his  reward  like  a  victor.  Not 
so  the  woman.  She  listened  to  the  allurements  of  hope  and  the 
whisperings  of  love.  She  wandered  through  devious  ways  where 
her  hands  were  torn  and  her  feet  were  bruised,  and  her  heart  was 
inp.de  to  bleed.  She,  too,  reached  the  gates  at  last,  not  standing 
but  on  her  knees,  not  a  victor,  but  as  one  vanquished.  Her  onl/ 
cry  was,  *'  Lord,  be  merciful."  The  great  Master  called  Amahi, 


SELF-DEFENSE.  719 

the  Angel  of  judgment,  to  judge  her.  Amalfi  took  the  woman 
away.  When  they  returned  her  face  was  radiant,  her  tears  were 
dry.  The  Master  demanded  of  Amalfi,  "How  have  you  judged 
her?"  He  said,  "Oh,  good  Master,  as  one  who  was  miserable! 
A  woman  in  agony,  whose  days  have  been  sadness  and  whose 
nights  all  misery."  And  the  Master  said,  "Stand  up,  come  forth 
and  be  free,  for  it  is  for  such  as  thou  that  God  gave  his  strength 
to  men  that  they  might  take  woman  by  the  hand  and  lead  her  to 
where  she  may  hear  the  Christ  say,  '  Come  unto  me  all  ye  that 
labor  and  are  heavy  laden  and  I  will  give  you  rest.'  '  Then  the 
hosannas  of  the  Angels  rang  out  their  approval  as  God  proclaimed, 
"  With  what  judgment  ye  meet  out  to  men,  that  judgment  shall 
be  meted  unto  you  by  your  Father  in  Heaven." 

He******** 

I  have  spoken  the  last  word  that  will  be  given  me  to  speak 
in  behalf  of  this  unfortunate  and  miserable  woman, — but  one 
thing  I  want  to  say  to  you — whatever  your  decision  may  be,  I 
trust  it  will  console  your  future  steps  by  day,  and  comfort  your 
pillow  by  night.  And  if,  when  you  return  home,  some  woman 
near  and  dear  to  you  shall  ask,  "How  did  you  judge  her — as 
one  who  was  miserable, — a  woman?"  or,  if  there  be  a  little  one 
who,  noting  your  long  absence,  shall  come  close  to  you  and  say, 
"Tell  me  about  it,  did  you  send  back  to  her  little  boy — his 
mama?"  Heaven  grant  your  answer  maybe  that  rewarded  with 
the  benediction: — 

"Well  done,  thou  good  and  faithful  servant." — I  thank  you! 

Jury  said,  "  Not  Guilty,"  and  the  court  room  rang  with  applause, 
which  was  promptly  suppressed. 


SHORT  INDEX. 


Page 

Boy  and  Man 702 

Brinkly  Case 411 

Beecher  Case 412 

Babcock  Case 436 

Bible  in  School .  .  473 


Burch  Divorce. 


Page 
Law  Office 238 

May  Stevens 242 

Matt  Ward 10 

Method  in  Trial .  .  235 


523   !   McFarland  Case 314 


Character  of  Lawyer 699 

Cross-examination 228 

Callahan  Case 465 

Conspiracy  Case 110 

Defense  of  Cook 107 

Elevated  Railway 456 

Foster  Hetfield 24C 

Farman— Ward 205 

Genius  in  Speech 699 

Harris,  Mary 35 

llaywood  Case 706-713 

Ideal  Cases 223 

Lincoln  Murder  Case 762 

Luck,  No  Law 230 


Xewland — Evans 354 

Port  Huron  Railway 471 

Pierce  Will 190 

Reach  a  Jury 232 

Raymond  Hill 452 

Sickles  Case 131 

Selecting  Jury 227 

Standard  Oil  Case 482 

Self-Defense 714 

Trial  by  Jury 165 

Twenty-one  Rules 209 

The  Other  Side •&•* 

Underwood  Trial 266 

Vanderpool  Trial 277-292 

Ward  Will..  394 


720 


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